Crim (Goold) - 2016 - Andrea - Bajcetic

1
Criminal Law CAN Table of Contents

Introduction to Criminal Law................................................................................................................. 4
DEFINITION OF CRIMINAL LAW................................................................................................................ 4
FUNCTIONS OF CRIMINAL LAW................................................................................................................. 4
SOURCES AND LIMITS OF CRIMINAL LAW............................................................................................. 5
ELEMENTS OF AN OFFENCE........................................................................................................................ 5
BURDEN OF PROOF....................................................................................................................................... 5
READING THE CODE................................................................................................................................. 6
KEY INTERPRETIVE PRINCIPLES.............................................................................................................. 6
General Rules of Statutory Interpretation.......................................................................................................... 6
Principles Worth Noting............................................................................................................................................ 6
CRIMINAL COURT SYSTEM IN BC........................................................................................................... 6
ROLE OF THE CROWN (CC S.4)........................................................................................................................ 7
WJ Stuntz “Pathological Politics of the Criminal Law” (pp. 272-273).....................................................7
Prosecutorial Discretion (PD)...................................................................................................................................... 7
Crown Disclosure............................................................................................................................................................ 8
ABORIGINALS AND JUSTICE SYSTEM.................................................................................................... 8
Disparity Between Indigenous and Non-Indigenous Incarceration Rates..................................8
WRONGFUL CONVICTION............................................................................................................................................ 9
CONSTITUTION AND CRIMINAL LAW................................................................................................. 10
ELEMENTS OF THE CHARTER AND CRIMINAL LAW.......................................................................... 10
ACTUS REUS........................................................................................................................................... 11
STRUCTURE OF ACTUS REUS................................................................................................................... 11
REQUIREMENTS OF ACTUS REUS........................................................................................................... 11
Voluntariness................................................................................................................................................................ 11
Positive Acts/ Omissions............................................................................................................................................ 12
CAUSATION................................................................................................................................................... 13
Factual vs. Legal Causation.................................................................................................................................... 14
Intervening Acts......................................................................................................................................................... 15
CONTEMPORANEITY.................................................................................................................................. 16
MENS REA............................................................................................................................................... 16
STRUCTURE OF MENS REA....................................................................................................................... 16
OBJECTIVE VERSES SUBJECTIVE FAULT.............................................................................................. 17
SUBJECTIVE MENS REA............................................................................................................................................... 18
FORMS OF SUBJECTIVE MENS REA........................................................................................................ 18
Intent............................................................................................................................................................................... 18
Wilfulness....................................................................................................................................................................... 19
Knowledge..................................................................................................................................................................... 19
Wilful Blindness............................................................................................................................................................ 19
Recklessness.................................................................................................................................................................. 20
OBJECTIVE MENS REA................................................................................................................................................. 20
S. 249(1) DANGEROUS DRIVING......................................................................................................... 21
Criminal Negligence....................................................................................................................................... 23
Manslaughter................................................................................................................................................. 23
SPRING 2016 – GOOLD

2
Assault............................................................................................................................................................. 24
Constitutional Dimensions of Mens Rea..................................................................................................... 24
K ROACH – “MIND THE GAP: CANADA’S DIFFERENT CRIMINAL & CONSTITUTIONAL STANDARDS OF
FAULT”............................................................................................................................................................................. 25
SEXUAL ASSAULT: INTRO AND ELEMENTS........................................................................................ 25
ACTUS REUS OF SEXUAL ASSAULT......................................................................................................... 25
MENS REA OF SEXUAL ASSAULT............................................................................................................. 28
Consent........................................................................................................................................................................... 28
Sexual Assault in the Context of Fraud................................................................................................................. 30
HOMICIDE............................................................................................................................................... 31
ACTUS REUS OF HOMICIDE........................................................................................................................... 31
Causation........................................................................................................................................................................ 31
Intervening Acts......................................................................................................................................................... 32
MANSLAUGHTER............................................................................................................................................ 33
Actus Reus for Manslaughter................................................................................................................................... 33
Unlawful Act Manslaughter...................................................................................................................................... 33
Criminal Negligence Manslaughter........................................................................................................................ 34
Second Degree Murder................................................................................................................................. 36
Intentional or Reckless Killing.................................................................................................................................. 37
Transferred Intent....................................................................................................................................................... 37
Unlawful Object............................................................................................................................................................ 37
FIRST DEGREE MURDER................................................................................................................................ 38
Actus Reus...................................................................................................................................................................... 39
Mens Rea........................................................................................................................................................................ 39
Planned and Deliberate Murder.............................................................................................................................. 39
Murder of a Police Officer......................................................................................................................................... 40
Murder While Committing........................................................................................................................................ 41
INFANTICIDE (NOT EXAMINABLE but potential policy-moral blameworthiness question)....................41
PARTICIPATION...................................................................................................................................... 42
PARTIES TO OFFENCE.................................................................................................................................... 42
Actus Reus...................................................................................................................................................................... 44
Mens Rea........................................................................................................................................................................ 45
COMMON INTENTION................................................................................................................................... 46
Actus Reus...................................................................................................................................................................... 46
Common Intention and Abandonment................................................................................................................. 46
PERSON COUNSELLING OFFENCE................................................................................................................. 48
Actus Reus...................................................................................................................................................................... 48
Mens Rea........................................................................................................................................................................ 49
ACCESSORY AFTER THE FACT........................................................................................................................ 49
INCHOATE OFFENCES............................................................................................................................ 50
Attempts........................................................................................................................................................ 50
Actus Reus...................................................................................................................................................................... 50
Mens Rea....................................................................................................................................................................... 52
Counselling – Crime Not Completed........................................................................................................... 52
IMPOSSIBILITY............................................................................................................................................ 53
CONSPIRACY................................................................................................................................................. 54

3
Actus Reus..................................................................................................................................................................... 54
Mens Rea....................................................................................................................................................................... 55
DEFENSES................................................................................................................................................ 56
INTOXICATION................................................................................................................................................ 56
Involuntary Intoxication......................................................................................................................................... 59
MENTAL DISORDER........................................................................................................................................ 60
Fitness to Stand Trial................................................................................................................................................ 60
Raising the Defence of Mental Disorder............................................................................................................ 61
Consequence of the Defence.................................................................................................................................. 62
Background of the Defence.................................................................................................................................... 63
Structure of the Defence.......................................................................................................................................... 63
AUTOMATISM................................................................................................................................................ 66
SELF-DEFENCE................................................................................................................................................. 69
Section 34(1)................................................................................................................................................................. 69
Section 34(2)................................................................................................................................................................. 71

4
Introduction to Criminal Law

DEFINITION OF CRIMINAL LAW
Criminal law is that branch of law which deals with wrongs that are punishable by the state.
 2 issues with this definition:
o (1) There are certain forms of conduct that can attract state punishment but do not form
part of the criminal law  can be jailed for civil contempt
o (2) Difficult to predict types of wrongs that are subject to state punishment
A crime is any public wrong that causes harm to the public (in addition to the victim) and is subject to
criminal proceedings, criminal rules of evidence, and criminal punishments.
 Focus on the harm arising from the wrong (community harmed by it)
 Focus on the interest engaged by the wrong (community values affected by it)
Why do we need a clear definition of what constitutes a crime?

 Helps us decide whether application of criminal law is appropriate to a given set of facts or problem
 Provides a basis for discussions about the proper scope of the criminal law and questions of criminal
law reform
Crimes vs. Torts: While criminal law sets out apportion blame and punish certain types of wrongs, torts looks
to compensate victims for harm arising out of certain types of conduct.
True crimes constitute conduct that is abhorrent to the basic values of human society (ie. murder) while
Regulatory crimes are imposed because unregulated activity would result in dangerous conditions being
imposed upon members of society (culpability less important).
FUNCTIONS OF CRIMINAL LAW
1. Instrumental (consequentialist) Functions: Aimed at bringing about some (positive consequence).

 Promoting order by setting out clear rules for individual behaviour (and prohibiting conduct that
it likely to harm others);
 Protecting the individuals and the public at large (by deterring potential offenders and
incapacitating convicted offenders); and
 Limiting and resolving conflicts between individuals
2. Moral Functions: Aimed at promoting or defending a particular moral position

 Acting in accordance with certain moral principles (such as punishing those who have committed
moral wrongs);
 Promoting a particular set of morals or community values by punishing those who do not act in
accordance with those morals or values; and
 Reasserting the moral claims (and moral rights) of victims by punishing offenders who fail to
respect those claims or rights
SOURCES AND LIMITS OF CRIMINAL LAW
The primary basis for Criminal Law in Canada is S. 91(27) of the Constitution Act 1867, which states that
power to make criminal law is federal power. The main source of criminal law is the Criminal Code.

5
Federal Parliament also has the authority (under s 91 (28)) to establish, maintain, and manage penitentiaries.
Other sources of criminal law include YCJA (2003) & Controlled Drug & Substances Act (1996), and case law.
Criminal law is limited by S.1 of the Charter, which “guarantees the R&F set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Courts
can strike down inconsistent legislation (s. 52) or order remedies for Charter violations (S.24(1)).
3 essential characteristics of a crime:

(1) Crimes prohibit certain types of conduct;
(2) Crimes are accompanied by a penalty for violating the prohibition set out in (1); and
(3) The prohibition and penalty must be directed to a “public evil” or some other behaviour that
can cause harm to the public at large (Margarine Reference Case (1949))
Criminal prohibition must also be enacted with a public purpose (ie. Public peace; • Order; • Security; •
Health; and • Morality)
ELEMENTS OF AN OFFENCE
1. The actus reus is the prohibited act (e.g. the actus reus of theft is the taking of property belonging to
someone else without their consent).
2. The mens rea of the offence is the required mental element(s) of fault (e.g. mens rea of theft is the
intention to take the property and the knowledge that you are not entitled to take it).
BURDEN OF PROOF
The burden of proof is on the Crown to establish that a crime has occurred beyond a reasonable doubt by
establishing:
(1) That the elements of the offence charged have been made out (proven actus reus & mens rea)
(2) The particular / relevant facts alleged in the charge – such as the identity of the accused and the
time and place of the offence.
Permissive presumption: courts may draw an inference of the presumed fact (ie. If A (basic fact) is
established, then the court is permitted (but not required) to assume that B (presumed fact) is true
Mandatory presumption: courts must draw an inference of the presumed fact (ie. If A (basic fact) is
established, then the court is required to conclude that B (presumed fact) is true
If a presumption is rebuttable, there are 3 potential ways the presumed fact can be rebutted.
1. Accused may be required to raise a reasonable doubt as to its existence
2. Accused has evidentiary burden to adduce sufficient evidence to bring into question the truth of
the presumed fact.
3. Accused has legal/persuasive burden to prove on a balance of probabilities the non-existence of
the presumed fact.

6
READING THE CODE

KEY INTERPRETIVE PRINCIPLES
(1) Must give meaning and effect to each and every word in the relevant provision(s).
(2) Always look to the Code for the definition of terms used in relation to a given offence. When looking for a
definition, you should work through the Code in the following order:
1. Start with relevant CC section

2. If the term isn’t defined in the section, move to the relevant Part
3. If term isn’t moved in the Part move to section 2 (general definitions)
4. Where relevant, look to the applicable case law for judicial interpretations of meaning
(3) Where there is no statutory definition (or definition in the relevant case law), then apply the general rules
of statutory interpretation.
General Rules of Statutory Interpretation
1. Key Principle: “The words of the statute must be considered in context, in their grammatical and
ordinary sense, and with a view to the legislative scheme’s purpose and the intention of Parliament.”
(SCC in Canadian Foundation for Children (etc.) v Canada, 2004 in interpreting Code)
2. Begin by looking at the context in which the word is used, then use “ordinary” dictionary meaning
3. If ordinary meaning does not provide an answer to the question of how to define the word, you can then
look to other rules and aids to interpretation such as:
 History of the provision
 Purpose of the provision
 Comparison with the version in the other official language
 The rule that the word may take its meaning from words with which its associated
 The rule that the expression of one excludes the unexpressed
Principles Worth Noting
1. Accused can only be convicted of the offense they’re charged, except in the case where the initial charge
contains within it an additional charge
a. Ie: charge of first degree murder contains within it ability to charge for second degree murder
b. The crown tends to charge the most serious of possible charges on the assumption that if the
initial charge cannot be sustained, they can convict for the lower offences.
2. Attempt to commit is always included in the definition of the offence
CRIMINAL COURT SYSTEM IN BC

(1) Provincial Court of BC
 Deals with 95% of criminal matters except murder (committed by adults)
 Appointed by the provincial government
(2) BC Supreme Court
 Has power to deal with all indictable offences, jury trials, and appeals from Provincial Court
 Appointed by the federal government
(3) BC Court of Appeal
 3-5 judges hear appeals based on law from BC Supreme Court

7
 Appointed by the federal government

(4) Supreme Court of Canada
 9 judges hear appeals from Court of Appeal based on law
 Highest court of appeal; decisions final and binding on all other levels of court
Criminal Justice Process: Investigation  charge assessment  prosecution  sentencing  appeals
ROLE OF THE CROWN (CC S.4)
 Executive branch appoints prosecutors: both a federal and provincial prosecutor’s office
 Role is to approve and conduct all prosecutions and advise the government on criminal law matters
 Quasi-judicial function: Independent officers of the court (protected from outside influence)
 Primary responsibility to be fair and preserve integrity of judicial process by accurately presenting
evidence, not searching for a win (Boucher v the Queen)
Boucher v the Queen

PROSECUTOR HAS PUBLIC DUTY TO BRING BEFORE COURT ALL CREDITABLE EVIDENCE RELEVANT TO CRIME
WJ Stuntz “Pathological Politics of the Criminal Law” (pp. 272-273)

 Argues that criminal law does not serve as a mechanism for distinguishing between those who should be
punished and those who should not, but rather acts to grant authority to prosecutors to determine who
should be exposed to the criminal law.
 Claims that criminal law outcomes are not determined by the substance of the criminal law, but rather
according to decisions of agents who administer it  Emphasizes influence of prosecutorial discretion
Prosecutorial Discretion (PD)
All charges laid and evidence against alleged offender are determined at the discretion of the prosecutor.
COURTS BEGIN WITH PRESUMPTION OF JUDICIAL NON-INTERFERENCE FOR MATTERS OF PD (R v
Anderson). PD may be reviewed under court tactics or abuse of process (R v Anderson).
Anderson: “[A]buse of process refers to Crown conduct that is egregious and seriously compromises trial
fairness and/ or the integrity of the justice system.  “improper motives” and “bad faith” (Nixon
Sanctions may include orders to comply, adjournments, and extensions for the defence based on:
 Failure to observe court rulings or orders

 Inappropriate behaviour (such as tardiness, incivility, abusive cross-examination, improper opening
or closing addresses or inappropriate attire)
Assumption of Judicial Non-Interference (Deference: Idea that we should not presumptively review)
1. Reflects respect for the competency of crown prosecutors they are in better position to make such
decisions than the courts are
2. Review of prosecutorial decision would (a) slow the judicial process (efficiency argument) and (b) would
be too hard on prosecutor (may be less likely to prosecute if every move is heavily reviewed)
Why does the Court start from a presumption of “judicial non-interference” when it comes to matters of
prosecutorial discretion? (Anderson):

8
(1) Doctrine of separation of powers – prosecution is an executive function / responsibility; and

(2) Efficiency and integrity – judges and other parties are not well-equipped to review decisions of the AG.
However, there needs to be transparency and accountability in prosecutorial discretion because they hold
such power  prosecution not required to give rationale of their decision-making, unlike judges
What is meant by “no contest” in the context of a criminal trial?  Where the defendant makes a plea of no
contest (nolo contendere), in effect they are accepting the charge and facts as set out by the prosecution.
Allows court to enter guilty verdict and proceed to sentencing stage.
R v Kriger (Referenced in Anderson)

Helps clarify definition of what prosecutorial discretion is:
 “… Refers to the use of those powers that constitute the core of the AG’s office and which are
protected from the influence of improper political and other vitiating factors by the principle of
independence.” (p. 275)
 “Prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and
the AG’s participation in it.” (p. 275)
Miazga v Kvello Estate

Importance of PD lies in its role in advancing the public interest – prosecutors
Crown Disclosure
R v Stinchcombe [1991]
WITHOUT FULL DISCLOSURE, DEFENCE IS PUT AT A CONSIDERABLE AND INHERENT DISADVANTAGE. All
relevant information must be disclosed subject to the reviewable discretion of the Crown. Police and Crown
have the best access to evidence of a crime  defence lawyer usually becomes involved later on in the life of
a case, and therefore relies on much of their evidence from Crown disclosure.
Crown disclosure is subject to the discretion of Crown counsel, which extends both to the withholding of
information and to the timing of disclosure  ie. for the protection of informants or to respect rules of
privilege or exclude irrelevant information
ABORIGINALS AND JUSTICE SYSTEM

 High numbers of Aboriginal individuals incarcerated
 Generations of negative relationship between CJS and Aboriginals (R v Kikkik, 1958); (R v Marshall)
Disparity Between Indigenous and Non-Indigenous Incarceration Rates
 Criminal law is heavily socially constructed (product of human decisions)

 Long-standing socio-economic disparities and the relationship between poverty and incarceration
 Selective policing and prosecution of Indigenous communities
 Cycle of poverty and alcoholism in isolated communities
 Inadequate protections/available legal resources (for systemic and economic reasons)

9
WRONGFUL CONVICTION
R v Marshall (1983) (stabbing-during-robbery-wrongfully-convicted)
LANDMARK CASE EXAMPLE OF SYSTEMIC DISCRIMINATION AND WRONGFUL CONVICTION. Marshall

accused of stabbing Sealey after 2 eyewitnesses testified that he had gotten into an altercation with him.
Marshall turned out to be innocent and was wrongfully convicted, serving an 11 year sentence before he was
exonerated. Had been involved in an attempted street robbery with Sealey where the guy Sealey was trying to
rob ended up pulling out a knife and stabbing him. Court did not compensate Marshall much for his wrongful
conviction and blamed him for inconsistent accounts in his testimony.
1. Shortcomings of justice system

a. Issues associated with fact finding
i. Justice system geared to finding legal not factual issues
b. Issues surrounding the denial of bail
i. Balance of society’s right to feel secure vs. the accused’s right to ease of access of
lawyer/familiar surroundings
c. Issues of false confessions
i. System provides huge incentives for guilty pleas that have reduced sentences from
initial charge
2. Systematic discrimination
a. Quick decision making = more reliance on stereotypes = creditability issues
b. Not all remedies in legal justice system can substantively fix discrimination issues (i.e. redefining
reasonable doubt)
3. Professional Responsibility
a. Failure of defense lawyers
i. Subtly indicating that Marshall is guilty but he should get a break
ii. Didn’t bother conducting independent investigation to ascertain facts
b. Vendetta of Constable Macintyre against Marshall
i. Seeking out false testimony for Marshall facts
ii. Did not disclose McNeil’s confession that he witnessed the two other men stabbing
Seale, not Marshall, week after Marshall was convicted – he had obligation to give that
info to the crown, who would disclose to the accused
c. Role of prosecutors
i. Not supposed to be concerned with winning but with the truth, and presenting all
evidence to the court
ii. Danger of “tunnel vision” – confirmation bias
d. Court of Appeal 1983
i. Defended justice system at expense of Marshall
(1) Asserted accused was responsible for own wrongful conviction because did
not disclose to lawyers he was attempting a robbery
(2) Marshall was blamed for wrongful conviction and received no damages
ii. Judge at 1983 appeal served as AG when Marshall was initially convicted in 1972
(conflict of interest)
R v Stinchcombe (1991): requires Crown disclosure before trial of all relevant and non-privileged info
Burns v Rafay (SCC): Extradited to face death penalty violates s. 7

10
CONSTITUTION AND CRIMINAL LAW

Criminal law is limited by S.1 of the Charter, which “guarantees the R&F set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Courts
can strike down inconsistent legislation (s. 52), order remedies for Charter violations (S.24(1)) or exclude
evidence from the trial (S. 24(2)).
ELEMENTS OF THE CHARTER AND CRIMINAL LAW
S. 7 - right to life, liberty and security of the person

S. 11 – right to presumption of innocence, fair trial and public hearing by an independent & impartial tribunal
R v Oakes (1986) (possession-hash-accused-prove-not-trafficking)

SETS TEST FOR S. 1 LIMITATION APPLICATION (OAKES TEST); REVERSE ONUS VIOLATES S. 11. Oakes found in
possession of 8 vials of hashish oil and $600+ in cash. Told police hash was for personal use and money was
worker’s comp. Charged with “possession of drugs for the purposes of trafficking” under s. 8 of the Narcotics
Control Act, which requires accused to prove on a balance of probabilities that they were not in possession for
the purposes of trafficking. Convicted at trial, but overturned on appeal based on the section being
unconstitutional and reverse onus violating s.11. Does s. 8 of the Narcotics Control Act violate s. 7 and s. 11
of the Charter? If so, can it be saved under s. 1? S. 8 of the NCA establishes a rebuttable mandatory
presumption upon Crown proof of possession beyond a reasonable doubt. Once the Crown has established
that the accused was in possession of a narcotic according to the Act, the accused is then required to
disprove the purpose of trafficking to the balance of probabilitie.  reverses onus of proof. Reverse onus
violates presumption of innocence under s. 11(d) and cannot be saved under S.1: NCA too broad (not
proportional to objective) and over-inclusive (captures possession of small or negligible quantity of narcotics)
OAKES TEST:
1. Objective must be pressing and substantial in free and democratic society
2. Means adopted must be reasonable and demonstrably justified
3. Infringement must be proportional (Proportionality test:)
a. Rational connection between objective and harm (not arbitrary) (R v Laba, 1994 SCC)
b. Impairs right as little as possible (cannot be over broad)
c. Proportional between means that limit the Charter right and effect
R v Downey (1992 SCC)

FURTHER ESTABLISHES S. 11(d) JURISPRUDENCE (CORY J.)
1) Presumption of innocence is infringed if A is liable to be convicted despite existence of reasonable doubt.
2) If A is required to prove or disprove on balance of probabilities an element of the offence or an excuse,
that provision violates s. 11(d) for the reason given in (1).
3) Even a rational connection between the established fact and the presumed fact is insufficient to make
the presumption valid.
4) Where the proven fact is such that it would be unreasonable for the trier of fact to be unsatisfied beyond
a reasonable doubt of the presumed fact, there is no violation of s. 11(d).
5) A permissive presumption does not violate s. 11(d).
6) A provision that offers a minor path to relief from conviction may nonetheless violate s. 11(d).
7) Statutory presumptions that violate s. 11(d) may still be justified under s. 1 (eg. Keegstra).

11
Canada (AG) v Bedford (2013 SCC) (prostitution-legality)

DEPRIVING SOMEONE’S S. 7 RIGHT VIOLATES CHARTER IF VIOLATION IS ARBITRARY, OVERBROAD OR
GROSSLY DISPROPORTIONATE. Prostitution itself is legal while activities surrounding it are illegal (ie. S.
210(1): keeping a bawdy-house, S. 212(1): living off prostitution, & S. 213(1): communicating in public).
Restrictions surrounding prostitution put safety and lives of prostitutes at risk (violate s. 7) and are therefore
unconstitutional.
OAKES’ TEST:
(1) Absence of a connection between the law’s purpose and the deprivation of a S. 7 interest violates
the Charter if it gives rise to arbitrariness and over-breadth;
(2) Depriving someone of a S. 7 interest violates the Charter if done in a manner that is grossly
disproportionate to the law’s objective.
Arbitrariness: Direct, rational connection between purpose of law and the impugned effect on the individual
Over-breadth: So broad that it includes activity that has no relation to the purpose of the law. (Obiter: An
overbroad law might be justified under s. 1 on the basis of enforcement practicality.) (R v Haywood)
Disproportionality: Law’s effects on life, liberty or security of the person are so grossly disproportionate to its
purposes that they cannot rationally be supported. Does not consider the benefits of the law for society, it
balances the negative effect on the individual against the purpose of the law.
ACTUS REUS
STRUCTURE OF ACTUS REUS
Accused acquitted If any element of Actus Reus not established
1. Conduct: Voluntary act or omission that forms the basis of the crime
a. Proof of positive acts (Killbride v Lake, 1962; R v Ruzic, 2001 SCC)
b. Criminal omission – liable only when there is legal duty to act and accused does not fulfill this
duty (R v Browne; R v Thornton)
2. Circumstances: Material & surrounding circumstances of the case
3. Consequences: Consequences of the voluntary conduct  Where consequence is necessary, Crown must
also prove causation
Note: Conduct not required for violations under 253(1), 335(1), and 351(1) of CC
REQUIREMENTS OF ACTUS REUS
CHECKLIST for Actus Reus:

1. Was there voluntariness?
a. Physical – accused’s control over their body
b. Moral – accused’s desire/willingness to commit conduct
2. Was it a positive act?
3. If not, was harm caused by an omission?
a. If omission, was there a duty of care?
Voluntariness
Criminal responsibility is only ascribed to acts that resulted from the choice of a conscious mind and an
autonomous, free will. (R v Ruzic, 2011 SCC)

12
Examples of involuntary conduct: Reflexes, sleepwalking, accident (Lucki, 1955)
R v Lucki (1955) (accused-car-slid-ice-wrong-side-road)
CERTAIN ACCIDENTS CAN BE INVOLUNTARY CONDUCT. Accused driver was trying to make a right-hand turn
on an icy street, and through no fault of his own his car skidded on a sheet of ice and ended up stopping on
the wrong side of the road. Charged with being on the wrong side of the road. Court acquitted him on the
grounds that the act was clearly involuntary.
R v Larsonneur (1993) (convicted-as-alien-beyond-control)

IMPROPERLY IGNORED ISSUE OF VOLUNTARINESS. Convicted of being an alien beyond her control after
landing in a country she had been deported from.
Killbride v Lake (1962) (accused-parking-pass-lost-when-parked)
PROHIBITED CONDUCT CANNOT BE FOUND IF IMPUGNED ACT WAS NOT COMMITTED VOLUNTARILY. A drove a
car and parked it in Auckland. He received a ticket for driving without a current warrant of fitness. Warrant
had been in its correct position when parked and become detached and lost or removed while he was away
from the car. Can the accused be found liable? No; a person cannot be held criminally responsible for an act
or omission unless it was done or omitted in circumstances where there was some other course open to him.
R v Ruzic (2001 SCC) (charged-importing-narcotics-threats)
LIABILITY IS FOUND ONLY WHEN THERE IS MORAL CONNECTION (KNOWLEDGE AND DESIRE TO COMMIT ACT)
BETWEEN ACCUSED AND THE ACT – IF ACT IS NOT VOLUNTARY ACCUSED CANNOT BE FOUND TO HAVE DONE
ANYTHING WRONG. R was charged with importing narcotics into Canada. Testified that she imported the
drugs because she had been threatened by a man who knew where she and her mother lived. She lived in
Yugoslavia, and at that time there was no effective police service in that country, so it was not possible for her
to seek protection from the police. Was her act voluntary? No; Criminal responsibility [is] ascribed only to
acts that resulted from the choice of a conscious mind and an autonomous will.
Bouchard-Lebrun (2011)
CRIMINAL RESPONSIBILITY CAN ONLY RESULT FROM THE COMMISSION OF A VOLUNTARY ACT. BASED ON
CONCEPTS OF FAIRNESS AND RECOGNITION IN CRIMINAL LAW. Actus reus of a crime cannot be established
unless "it is the result of a willing mind at liberty to make a definite choice or decision, or in other words,
there must be a willpower to do an act whether the accused knew or not that it was prohibited by law"
Has physical and moral dimension.
Positive Acts/ Omissions

In order for the accused’s conduct to satisfy the actus reus of an offence, the wrongful conduct must be by
way of a positive act (or criminal omission).
Generally, the criminal law does not punish omissions/ failures to act. However, the law may hold a person
criminally liable for an omission if they are under some legal duty to act. (Moore v the Queen, 1979)
Why should we criminalize omissions? (Policy argument)
1. There is no moral difference between an act and an omission.

2. Criminalizing omissions helps reinforce that we owe obligations of social responsibility to each other.
Arguments against criminalization of omissions
1. Sufficient impingement on individual liberty
2. Forces people to “be good” rather than stopping them from “doing wrong” – violates individual autonomy
and prevents individuals from developing as moral actors
13
R v Speck [1977]: (Accused-did-not-remove-little-girl’s-hand-from-pants)
SOMETIMES AN OMISSION CAN BE A POSITIVE ACT. 8-yo girl sat on defendant’s lap and placed her hand on
his penis (outside of his trousers) for approx 5 mins. Man because aroused and remained inactive during the
time, not attempting to remove her hand. Defendant was charged with battery. Was there a positive act?
Act wrapped up in an omission: although not at fault for the initial act, once he failed to stop the child, it
became an invitation and therefore an act.
Moore v the Queen [1979]
OMISSION TO ACT IN A PARTICULAR WAY WILL GIVE RISE TO CRIMINAL LIABILITY ONLY WHERE A DUTY TO
ACT ARISES AT COMMON LAW OR IS IMPOSED BY STATUTE.
R v Browne (1997) (drug-dealer-GF-overdose)
CRIMINAL STANDARD FOR NEGLIGENCE (LIABILITY FOR OMISSION TO ACT) IS HIGHER THAN THAT OF CIVIL
STANDARD BECAUSE SANCTIONS IN CRIM ARE A BIGGER DEAL. Deceased, G, swallowed a bag of crack cocaine
to evade detection by police. When G & B returned to B’s home, G fell ill. B said ‘I’m going to take you to the
hospital.’ When they arrived, B initially denied that G had taken drugs, then admitted it. G was pronounced
dead soon after her arrival at the hospital. Was there an undertaking in the nature of a binding
commitment? Mere expression of words indicating a willingness to do an act cannot trigger the legal duty.
There was no undertaking established on premise of defendant and plaintiff’s relationship, thus no duty of
care. NO UNDERTAKING = NO DUTY OF CARE = NO LIABILITY FOR OMISSION .
R v Thornton (1991) (accused-donates-AIDS-blood-knowingly)

FUNDAMENTAL DUTY IN COMMON LAW TO REFRAIN FROM CONDUCT THAT CAN BE REASONABLY FORSEEN TO
CAUSE INJURY TO ANOTHER PERSON. T donated blood to the Canadian Red Cross knowing that he had twice
tested positive for HIV. He was aware that HIV is transmitted by blood and that Red Cross would not
knowingly accept blood from those who had tested HIV+. Did T have a duty of care to disclose that he had
AIDS when donating blood? Yes, duty established through common law (duty to refrain from causing harm
to another).
CAUSATION
Code rarely speaks to causation - only in ss. 224 and 225. Causation spoken to mostly in common law
(asserted by SCC in R v Maybin 2012)
Basic Steps for Determining Causation in Criminal Law:

1. Crown must establish that the accused’s conduct was a “but for” cause of the harm or prohibited
outcome [FACTUAL CAUSATION]
2. Then Crown must establish that accused’s conduct is a legal cause of the harm or prohibited
outcome [LEGAL CAUSATION]
(1) Causation in Non-Homicide Cases:

R. v. Winning (1973): Ontario Court of Appeal held that the Crown must establish that the accused’s
conduct was a contributing cause outside the de minimus range.
(2) Causation in Homicide Cases:

Smithers (1977): SCC held that the Crown must establish that the accused’s conduct was at least a
contributing cause of death, outside of the de minimus range

14
Nette (2001): Supreme Court confirmed the test in Smithers, but reformulated the wording of the
test (drawing on Harbottle [1993]) such that the Crown must establish that the accused’s conduct
was a “significant contributing cause” of death. Court noted that phrases such as “not a trivial cause”
and terms like de minimus are rarely helpful
Maybin (2012): Supreme Court confirmed that the key issue is whether the accused actions still
constituted a significant cause of death (test in Nette)
Factual vs. Legal Causation
Factual Causation (“but for” test): But for the accused’s conduct, the prohibited consequences would not
have occurred. Need to establish whether the accused’s conduct is part of some “chain of causation” that led
to the prohibited conduct. (R v Winning, 1973)
Legal Causation: (de minimis test): Accused’s conduct must be at least contributing to cause death outside of
de minimis range (R v Smithers, 1977, R v Winning, 1973)  Should the accused be held responsible for the
prohibited consequence?
 Nette (2001) established that accused’s conduct must be a significant contributing cause of death
 Thin skull rule applies (take the victim as you find them): victim’s characteristics do not have to be
foreseeable (R v Blaue, 1975)
 Higher threshold for first degree murder (Harbottle, 1993): In order to establish first degree
murder under S. 231(5) [then 214(5)], the Crown must prove that the the accused’s participated in
the murder in such a way that he was a substantial cause of the death of the victim.
R v Winning (1973) (accused-obtains-credit-false-pretences?)

CROWN MUST ESTABLISH THAT “BUT FOR” THE ACCUSED’S CONDUCT, THE PROHIBITED CONSEQUENCES
WOULD NOT HAVE OCCURRED. Accused attempted to obtain credit by false pretences. Credit agency Eatons
did not reply on her application form when taking the decision to grant credit. Should accused be held
causally responsible? No; there wasn’t a causal connection between her conduct and the extension of credit.
Smithers v the Queen [1977 SCC] (accused-kicks-victim-causing-aspiration-death)

IF ACCUSED’S UNLAWFUL ACT IS FOUND TO HAVE CONTRIBUTED OUTSIDE THE DE MINIMIS RANGE TO THE
VICTIM’S DEATH THEN THE ACCUSED IS GUILTY. ACCUSED MUST TAKE VICTIM AS HE FINDS HIM – THIN
SKULL RULE. Accused kicked victim in the stomach during a fight, causing aspiration. Malfunction of victim’s
epiglottis caused vomit to enter lungs, which eventually caused victim’s death. Was the accused’s kick the
victim’s cause of death? Yes; Enough evidence that kick contributed to death to establish manslaughter.
Sufficient to prove kick contributed to death beyond de minimis range. One who assaults another must take
his victim as he finds him (thin skull rule established in R v Blaue [1975]).
R v Blaue [1975] (victim-stabbed-refuses-blood-transfusion)

ESTABLISHED THIN SKULL RULE: THOSE WHO USE VIOLENCE MUST TAKE VICTIMS AS THEY FIND THEM
(BOTH PHYSICAL AND RELIGIOUS DISPOSITIONS). VICTIM CHARACTERISTICS DO NOT HAVE TO BE
FORESEEABLE. A woman was stabbed by the defendant. She was taken to hospital and refused a blood
transfusion due to her religious convictions as a Jehovah's Witness. She then died from her wounds. Can the
accused be held liable for her death? Yes; thin skull rule applies. FORESEEABILITY is not a defense against
this rule. Also  distinction between religious conviction and psychological conviction (sense of control over
decision-making process differs).

15
Moral luck policy considerations:* Circumstance determines slight change of events that may or may not
result in crime/ worse conditions for the accused.
R v Nette (2001 SCC) (break-into-home-tied-up-old-lady-died)

SMITHERS “DE MINIMIS” CAUSATION TEST APPLIES TO ALL HOMOCIDE CASES.  REFORMULATED
WORDING OF TEST – “SIGNIFICANT CONTRIBUTING CAUSE.” HARBOTTLE’S “SUBSTANTIAL CAUSE” TEST
CREATES ADDITIONAL CONSIDERATIONS APPLIED ONLY TO 1ST DEGREE MURDER CHARGES. LEADING
AUTHORITY FOR LEGAL CAUSALITY FOR HOMOCIDE CASES. 95-year old widow was robbed in her home and
left hog-tied in her room with ligature around her neck; she was found 48 hours later to have suffocated to
death. What is the appropriate threshold of causation required for second-degree murder? Standard for 2nd
degree murder is de minimis, in other words, the accused’s action were a “not insignificant” factor
contributing to victim’s death. Applies Smithers: Accused’s actions a significant contributing cause of the
victim’s death.
R v Harbottle (1993) (accused-held-victim’s-legs-companion-strangled-her)

TO ESTABLISH FIRST DEGREE MURDER UNDER S. 231(5), CROWN MUST PROVE THAT THE ACCUSED
PARTICIPATED IN THE MURDER IN SUCH A WAY THAT HE WAS A SUBSTANTIAL CAUSE OF DEATH OF THE
VICTIM. Appellant & companion forcibly confined a young woman. After his companion brutally sexually
assaulted while appellant watched, they decided to strangle her. Appellant held victim’s legs to prevent her
from struggling while his companion strangled her. Can Harbottle be convicted of first degree murder? Yes;
he was a substantial and significant contributing cause of her death.
Intervening Acts
General rule (R v Maybin, 2012): If the intervening act is reasonably foreseeable, then it does not
necessarily break the chain and the accused will continue to be responsible for the harm.
Where the intervening act is the intentional act of another person, the court is less likely to conclude that it
is part of the chain and instead hold that it severs the chain and relieves the accused of liability.
Analytical tools set out in Maybin (2012):

1. Was the intervening act foreseeable?
2. Was the intervening act independent of the accused’s actions?
3. Are the accused’s actions a significant contributing cause of the victim’s death? (Nette)
R v Maybin (2012 SCC) (brothers-beat-up-guy-bouncer-punches-him-guy-dies)

REASONABLY FORESEEABLE ACT INTERVENING IN ACCUSED’S CRIMINAL ACTION DOES NOT ALWAYS BREAK
CHAIN OF CAUSATION. ANALYTIC TOOLS NOT TEST FOR ANALYZING BREAKS IN CHAIN OF CAUSATION.
Victim was at pub and moved some pool balls that Maybins were playing with. They punched him repeatedly
in the face and head, rendering him unconscious. Bouncer intervened after being told the victim was the
instigator of the fight and struck the unconscious victim in the head. The victim died from internal bleeding;
brothers and bouncer were charged with manslaughter. Does the bouncer’s conduct constitute an
intervening factor that severs the chain of causation between the defendants’ conduct and the victim’s
death? Brothers caused the victim bodily harm and this was a significant contributing factor in the victim’s
death. Judge determined that it was foreseeable that a bouncer would intervene in the bar fight; did not
sever the chain of causation when applying the causation test appropriately. Sets up two analytic tools for
measuring causation when there is an intervening action:

16
1. Foreseeability – intervening acts that are reasonably foreseeable will usually not break chain of
causation so as to relieve offender of legal responsibility for unintended result
a. Requires an objective standard of reasonability (general nature of intervening act and
accompanying risk of harm needs to be what can reasonably be foreseen)
2. Independent act severing line of causation - did the accused’s act merely set the scene for the
independent intervening act or did the accused’s act trigger the intervening act?
Given the decision in Maybin, where an intervening act that contributes to the death of the victim is
unforeseeable, it is more likely to be regarded as breaking the chain of causation. Similarly, where the act is
independent of the accused, it is more likely to be regarded as breaking the chain of causation.
R v Sarrazin [2011 SCC] (gunshot-wound-died-from-cocaine)

IF ACCUSED’S ACTIONS ARE SIGNIFICANT CONTRIBUTING CAUSE OF DEATH, THEY ARE CAUSALLY
RESPONSIBLE. Accused shot victim, victim stabilized and was released from hospital with expectation of full
recover. 5 days later, victim died from blood clot. Trace amounts of cocaine were found in victim’s blood
indicated cocaine consumption within an hour of death. While blood clot was likely the result of the shooting,
Crown pathologist conceded it could also have been the result of cocaine. Causation not proven without
reasonable doubt. Should have been convicted of attempted murder.
R v Reid [2003] (fight-died-from-botched-CPR)

Appellants convicted of manslaughter for death of victim after physical altercation where accused headlocked
victim while the other kicked him. When it was apparent that he was unconscious, other members of group
attempted resuscitation using CPR. Victim declared dead at hospital, caused by asphyxiation after he aspired
on his stomach contents. The botched CPR attempts caused death when the pressure of physical resuscitation
efforts forced large quantities of vomit into his lungs. Appeal allowed on basis of intervening act.
CONTEMPORANEITY
Offense cannot be proven unless the actus reus and mens rea coincide – requires temporal overlap between
actus reus and mens rea
Fagan v Commissioner of Metropolitan Police [1969] (parks-on-police-officer’s-foot)

ACTS CAN BECOME CRIMINAL IF THE NECESSARY MENS REA FORMS DURING THE COURSE OF THE
IMPUGNED ACT. Fagan parks his car “accidentally” on police officer’s foot; at first, ignores officer’s
complaints and requests to remove the car off his foot and turns off ignition; finally turns car back on and
moves off officer’s foot; charged with assault. Did Fagan’s act constitute a continuing act of assault? Do the
actus reus and mens rea have to coincide? YES; The actus reus and mens rea do not have to occur at the
same time; they can be superimposed on each other when there is a continuous act.
R v Miller [1982] (lit-cigarette-fell-asleep-caused-fire-left-room)

AN OMISSION CAN BE TREATED AS ACTUS REUS IF A PERSON CREATES A HARMFUL SITUATION AND
INTENTIONALLY OR RECKLESSLY FAILS TO TAKE STEPS TO PREVENT THAT HARM. Miller lit cigarette and fell
asleep without finishing it. When he woke up, the mattress was smoldering but instead of putting out the
cigarette, he moved to a different room and fell asleep. House caught fire as a result and Miller was charged
with arson. Is an offence present where the accused’s conduct causes a fire without requisite intent and the
accused fails to take any steps to stop the offence? Yes; Actus reus occurred because Miller created a
situation that would result in harm if he recklessly failed to prevent that harm. Aappellant created liability
himself and therefore should not be excused from criminal liability appellant created the duty of care

17
MENS REA
STRUCTURE OF MENS REA
 Fault element: impugned act is accompanied by guilty mind  moral blameworthiness

 No uniform definition of the fault requirement in Canadian criminal law. As a result, the courts have to
infer the fault requirement from the legislative definition of each offence.  lack of clarity and
consistency between offences
 Can be defined as all of the mental elements (other than voluntariness) the Crown must prove to obtain
a conviction of a criminal offence.
 Function: to prevent the conviction of the morally innocent those who do not understand or intend
the consequences of their acts
 Typically concerned with the consequence of actus reus (R v Theroux 1993): ie. dangerous driving the
mens rea may relate to the failure to consider the consequences of inadvertence.
Mapping Mens Rea:

OBJECTIVE VERSES
(1) CONDUCT: SUBJECTIVE
Intentional FAULTact or omission
or reckless
(2) CIRCUMSTANCE: Knowledge or reckless of circumstance
(3) CONSEQUENCE:
Subjective: Intend
What actually or bethrough
passed recklessaccused’s
to consequences
mind – What was in the mind of the accused?
Objective: Accused measured by normative objective standard (i.e. reasonableness) – What should have
been in the mind of the accused?
Forms of Subjective Mens Rea:

(1) Intent: Intending to carry out an act purposely and deliberately
(2) Knowledge: Actual awareness of a particular circumstance
(3) Recklessness: Foresees that something may occur but chooses to proceed in face of that risk
Determining Mens Rea:

(1) Begin with the wording of the statute, and see if the offence specifies a mental element.
(2) Where the statute is incomplete or silent, look to the case law.
(3) If still not specified, presume that true crimes require the Crown to prove a subjective mens rea
beyond a reasonable doubt in relation to at least some actus reus element.
R v ADH (whether fault element for S. 218 child abandonment should be assessed subjectively or objectively)
PRESUMPTION OF SUBJECTIVE FAULT UNLESS INDICATED BY STATUTE. Based on idea that morally innocent
should not be punished.
R v Buzzanga & Durocher [1979]

THE GREATER THE LIKELIHOOD OF THE RELEVANT CONSEQUENCES ENSUING FROM ACCUSED’S ACTIONS
THE EASIER THE INFERENCE THAT HE INTENDED THOSE CONSEQUENCES. Accused charged with wilfully
promoting hatred against francophones by publishing a satiric pamphlet in order to combat apathy in the

18
French-speaking community regarding the building of a French school. Did the accused actually intend to
produce the consequence of promoting hatred? Inferred intent.
R V TENNANT AND NACCARATO [1975]

REASONABILITY IS MERE EVIDENCE FOR SUBJECTIVE MENS REA; REASONABILITY IS BASIS OF LIABILITY FOR
OBJECTIVE STANDARD.
SUBJECTIVE MENS REA
Subjective fault requires that the accused had the actual intention, knowledge or recklessness to commit an
act, in a particular circumstance, or bring about a consequence. (Creighton, 1993)
Key: Requires the Crown to prove that the accused chose to do something wrong. Accused should not be
convicted of a criminal offence unless they they:
(1) deliberately intended to bring about the consequences prohibited by law; or
(2) subjectively realized that their conduct might produce such prohibited consequences (and
proceeded with this conduct despite their actual knowledge of this risk).
“The greater the likelihood of the relevant consequences ensuing from the accused’s act, the easier it is to
draw the inference that he intended those consequences.” (R v Buzzanga, 1979)
*If not specified as subjective or objective, should assume subjective test (some exceptions, ie. sexual
assault and question of consent)* (R v ADH [2013], R v. Sault Ste. Marie (City) (1978))
“Common Sense Inference:” A person can usually be taken to have intended the natural and probable
consequence of his or her actions (R v Buzzanga (1979); R v Tennant (1975))
“You may infer, as a matter of common sense, that a person usually knows what the predictable
consequences of his of her actions are, and means to bring them about.” (SCC in R v Walle (2012))
**Where there is no mens rea specifically stated in the relevant section of the Code, the court will assume
that the mens rea required is intent or recklessness (R v Buzzanga)**
FORMS OF SUBJECTIVE MENS REA
5 Types of Subjective Fault in Mens Rea:

1. Intent
2. Wilfulness
3. Actual Knowledge
4. Wilful Blindness
5. Recklessness
Intent
Difference between intent: the exercise of a free will/desire to use particular means to produce a particular
result & motive: reason behind act: that which precedes and induces the exercise of the will (and is not
relevant to mens rea)
 A good motive is no defense to intentional crimes (although it may be a factor that affects
prosecutorial decisions or sentencing) (USA v Dynar (1997))

19
Purpose is similar to intent: the desire to bring about a certain set of consequences
 General principle that the accused will be held to have intended the probable consequences of their act,
even if they did not explicitly desire those consequences (R v Hibbert, 1995)  inferred intent
Common Sense Inference: person can usually be taken to have intended the natural and probable
consequences of his or her actions (Buzzanga)
Transferred Intent: Accused has intent to hit A but in actuality hits B, accused’s intent is then transferred
from intending to harm A to intending to harm B
- Common law principle of transferred intent is codified in s. 229(b) of CC, which states that the mens
rea of intentionally or knowingly causing death to one person can be transferred to the killing of the
actual victim, even though the accused "does not mean to cause death or bodily harm" to the victim
and does so "by accident or mistake.” (codifies transfer of intent for homicide; R v Deakin (1974)
allows transferred intent for bodily harm)
R v Steane [1947] (worked-for-Nazis-during-war)

WHEN A PERSON SUBJECT TO OTHERS’ POWER DOES AN ACT THE COURT SHOULD NOT DRAW INFERENCE
THAT PERSON INTENDED NATURAL CONSEQUENCES OF HIS ACT FROM MERE FACT HE DID IT
(SIGNIFICANCE OF DURESS ON INTENT). Actor employed by German broadcasting service during the Nazi
regime. He was physically beat and threatened along with the threatening of his family in order to work for
them. Charged with doing acts likely to assist enemy with intent to assist enemy. Cannot presume specific
intention from prohibited action alone.
R v Hibbert [1995] (forced-to-help-offender-shoot-victim)
ACCUSED WILL BE HELD TO HAVE INTENDED THE PROBABLE CONSEQUENCES OF THEIR ACT, EVEN IF THEY
DID NOT EXPLICITLY DESIRE THOSE CONSEQUENCES. DURESS MAY BE USED AS A DEFENCE TO NEGATE
MENS REA. Accused forced by principal offender to accompany him to victim’s apartment and lure victim
down to the lobby, where the offender shot the victim. Accused was charged with attempted murder and
relied on the defence of duress.
Wilfulness
Generally held as synonymous with intention; doesn’t have a fixed meaning (R v Buzzanga)
Knowledge
Lesser form of mens rea than intent or purpose. Generally, refers to accused having actual knowledge of a
particular set of circumstances. Does not have to be explicit – can be implied (Lecompte, 2000 re: s. 63)
Knowledge is common form of mens rea for possession-based offences (R v Beaver, 1957)
 Ie. A person who is in possession of heroin and honestly believes it to be baking soda would not
have the requisite mens rea for possession
R v Dynar (1997) sets 2 components of knowledge:

1. Truth (of the objective facts) goes to the question of actus reus
2. Belief (in relation to the objective facts) goes to questions of subjective mens rea
R v Theroux [1993] (fraudulently-sold-houses)

WHERE THE CONDUCT AND KNOWLEDGE REQUIRED OF AN OFFENSE’S ACTUS REUS AND MENS REA ARE
ESTABLISHED, THE ACCUSED IS GUILTY WHETHER THEY INTENDED THE PROHIBITED CONSEQUENCE OR

20
WERE RECKLESS AS TO WHETHER IT WOULD OCCUR. Accused convicted of fraud for accepting deposits from
investors in a building project and lying about purchasing deposit insurance.
Wilful Blindness
Accused subjectively sees the need for further inquiries about the existence of prohibited consequences or
circumstances but deliberately fails to make such inquiries because they do not want to know the truth.
 Imputes knowledge to an accused whose suspicion is aroused to the point where they see a need
for further inquiry but deliberately chooses not to make those inquires (R v Briscoe)
R v Briscoe [2010] (drove-to-golf-course-others-killed-girls)

WILFUL BLINDNESS CAN SUBSTITUTE FOR ACTUAL KNOWLEDGE WHENEVER KNOWLEDGE IS A
COMPONENT OF THE MENS REA (DELIBERATE IGNORANCE). Accused assisted in the crimes by driving a
group to the crime scene, providing a weapon, and holding the victim and telling her to shut up. Accused said
he did not know crimes would occur. Does the accused have the requisite mens rea? Yes; wilful blindness can
be substituted for actual knowledge where accused fails to inquire when he should have.
Recklessness
Accused will be reckless if – having become aware of the risk of the of the prohibited conduct/ consequence
– they nonetheless continued with the prohibited actus reus. Lowest (least serious) form of mens rea.
 When someone who is aware of there is danger that their conduct could bring about the result
prohibited by the criminal law nevertheless persists despite the risk (R v Sansregret, 1985)
Different than negligence:

 Fault by reckless if you subjectively recognized the prohibited risk (consciousness of risk) & proceed
anyway
 Fault by negligence if reasonable person would have recognized the prohibited risk in the same situation
(and failed to inquire)
R v Sansregret (guy-threatens-ex-GF-sleeps-with-him-out-of-fear-believes-consent)
WILFUL BLINDNESS AND RECKLESSNESS ARE DISTINCT. After breaking up, accused came back and
threatened ex-GF who sleeps with him out of fear and to calm him down. Happens a second time. Accused
argues consent given. Court found that the accused willed himself to blindness.
OBJECTIVE MENS REA
Objective fault asks what the ordinary person should have known or would have intended in the
circumstances, and imputed this knowledge or intention to the accused. (Creighton, 1993)
Objective mens rea is satisfied if the Crown can prove that a reasonable person, in the same circumstances
and with the same knowledge of those circumstances as the accused, would have appreciated that their
conduct was creating a risk of producing prohibited consequences and would have taken action to avoid
doing so.
General test: Crown must prove that there was a marked departure from the standard of care expected of a
reasonably prudent person.
When might an objective approach be taken?

 Where subjective approach is unlikely or unbelievable (ie. consent)
 Public protection argument against people who cannot assume reasonable person standard

21
Why might an objective approach be taken?

 Standard is higher, and involves holding the individual responsible according to the standards to
the ordinary person. Frequently justified on the grounds of public protection.
Fault is found when accused had the capacity to live up to the standard of care expected of a reasonable
person and failed to do so.
Main offences imposing objective liability:

(1) Section 249(1) Dangerous Driving R V BEATTY; R V HUNDAL
(2) Sections 220 and 221 Criminal Negligence Causing Death and Criminal Negligence Causing
Bodily Harm R V WILLOCK
(3) Section 222(5) Unlawful Act Manslaughter R V CREIGHTON
(4) Section 269 Unlawfully Causing Bodily Harm R V DESOUSA
(5) Section 267 Assault Causing Bodily Harm R V DEWEY
(6) Section 268(1) Aggravated Assault R V MACKAY
(7) Section 219(1) Offences involving Criminal Negligence
(8) Section 220 Causing death by criminal negligence
(9) Section 221 Causing bodily harm by criminal negligence
(10) Section 225(5)(b) and Section 234 Manslaughter by Criminal Negligence
S. 249(1) DANGEROUS DRIVING

Dangerous operation of motor vehicles, vessels and aircraft
249. (1) Every one commits an offence who operates
(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances,
including the nature, condition and use of the place at which the motor vehicle is being operated and the
amount of traffic that at the time is or might reasonably be expected to be at that place;
Punishment
(2) Every one who commits an offence under subsection (1)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
S. 2
“motor vehicle” means a vehicle that is drawn, propelled or driven by any means other than muscular power,
but does not include railway equipment;
Dangerous definition not in Code  use objective standard based on case law
Actus Reus for S. 249: Dangerous Driving:
In cases on S. 249 (dangerous driving), the Courts frequently refer to the fact that the Crown has to establish
that the accused has been criminally negligent.
Conduct  Was the operation of the vehicle dangerous to the public (according to an objective standard)?
- This is determined according to the standard of a reasonable person (Cromwell J. in R. v. Roy (2012):
“In considering whether the actus reus has been established, the question is whether the driving,
viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry

22
must be on the risks created by the accused’s manner of driving, not the consequences, such as the
accident in which he or she was involved.”
Circumstances  “[I]n all of the circumstances” is relevant to the question of whether the conduct in (i)
above was dangerous.
Consequences  None required. Section is silent to the question of consequences, so the Crown does not
have to prove harm or damage.
Mens Rea for S. 249: Dangerous Driving:
Modified objective test: Start with objective standard (what would we expect a reasonable person to
foresee in terms of the risk), and then modify it according to the subjective knowledge of the
accused/with regards to the actual circumstances.
 Judge in R v Hundal [1993]: It would be impractical to expect the Crown prove that the accused
subjectively appreciated the risk created by his or her driving conduct – because driving is an
"automatic" type of behaviour which does not require conscious thought on the part of the driver.
 This test could also provide a defence if accused suffers unexpected condition (ie. seizure) it would
be impossible for them to form the modified objective mens rea (because a reasonable person in the
same situation would not be able to appreciate or foresee the relevant risk)
o Unless accused was aware of possibility of risk (ie. had previous lapses)  Driving with an
awareness of the possibility of loss of consciousness would involve knowingly creating a risk
(which would be a marked departure from the standard expected of a reasonable person).
Criminal negligence: Proof of conduct which reveals a marked and significant departure from the standard
that could be expected of a reasonably prudent person in the circumstances. (R v Tutton, 1987)
 More onerous than regular negligence standard  Tutton questions whether personal factors (ie.
youth, education) should be taken into account when deciding on a “reasonable person”
o This is rejected in R v Creighton (1993)  these characteristics are only relevant to
questions of capacity
 Test must be applied with some flexibility in the context of the events surrounding the incident –
requirement is marked and significant departure from reasonable person standard (R v Hundal)
R v Tutton [1987]
Objective standard for mens rea needs to modified when determining criminal negligence so that it gives
allowance for factors that are particular to the accused, such as youth, mental development, education 
followed in R v Hundal; rejected in R v Creighton
R v Hundal [1993 SCC] (ran-red-light-killed-driver)
S. 249 IMPORTS A MODIFIED OBJECTIVE STANDARD FOR DANGEROUS DRIVING. Accused, while driving an
overloaded dump truck, ran a red light at an intersection and killed the driver of an oncoming car (which had
entered the intersection on a green light). TEST FOR OBJECTIVE STANDARD APPLIED IN FACTUAL CONTEXT:
(1) Consider whether D’s conduct was marked departure from the standard of care that a reasonable person
would observe in D’s situation; (2) HOWEVER if D offer explanation for his actions the trier of fact must
consider whether a reasonable person in D’s shoes would have appreciated the risk and danger inherent in
that course of action. Judge also noted that the licensing requirement for driving which assures that all who
drive have a reasonable standard of physical health and capability, mental health and a knowledge of the
reasonable standard required of all licensed drivers.

23
R v Beatty (2008 SCC) (guy-drives-over-centre-line)

MOMENTARY LAPSES OF ATTENTION/CONCENTRATION ARE WITHIN THE SCOPE OF WHAT WOULD BE
EXPECTED FROM A REASONABLE DRIVER. Accused's pickup truck, for no apparent reason, suddenly crossed
the solid centre line into the path of an oncoming vehicle, killing all three occupants. Witnesses driving
behind observed the accused's vehicle being driven properly prior to accident. Accused stated that he was not
sure what happened but that he must have lost consciousness or fallen asleep and collided with the other
vehicle. Charged with 3 counts of dangerous driving causing death. Did the accused’s actual state of mind
amount to a marked departure from the standard of care that a reasonable person would observe in the
accused’s circumstances? NO. Court concluded that there was no marked departure from the standard of
care that would be expected of a reasonable person. A reasonable person, armed with the knowledge of the
circumstance possessed by the accused, would not have foreseen that there would be a momentary loss
consciousness and a loss of control of the vehicle. Requisite mens rea cannot be made out by simple
reference to the fact of the accident (ie. consequence).
R v Roy (2012 SCC) (turns-left-into-truck-passenger-dies)
MODIFIED OBJECTIVE STANDARD IS THE MINIMUM FAULT REQUIREMENT FOR DANGEROUS DRIVING.
Accused convicted of dangerous driving causing death after turning left on a slippery, snow-covered highway
with poor visibility and colliding with a tractor-trailer. Applied test: Would a reasonable person have foreseen
the risk and taken steps to avoid it if possible? Was the accused’s failure to foresee the risk and take steps to
avoid it a marked departure from the standard of care expected of a reasonable person in the accused’s
circumstances? Judge found a simple misjudgment of speed and distance in difficult conditions/poor visibility
with tragic consequences does not constitute a marked departure from reasonable standard of care.
Criminal Negligence
S. 220 & 221: Courts have held that criminal negligence requires proof that there was a marked and
substantial departure from the standard expected of the reasonable person.
“Criminal negligence in the context of driving-related allegations … requires proof that the accused's conduct
constituted a marked and substantial departure from that expected of the reasonable driver and proof that
the conduct demonstrated a wanton or reckless disregard for the lives or safety of other persons… may be
inferred from proof of conduct.” (Willock, 2006)
- proof of intention or actual foresight of a prohibited consequence is not required*
R V WILLOCK (2006)
In cases of crimes of criminal negligence (such as S. 220 and 221), the Crown must prove that: there was a
marked AND substantial departure from the standard of care expected of a reasonably prudent person. **Is
a modified objective test**
Manslaughter
S. 222(5): Manslaughter occurs when the accused commits an unlawful act (such as an assault) which results
in death, but does not have the requisite mens rea for murder as set out in Section 229(a) (intent to kill or
intent to inflict bodily harm that the accused knows is likely to cause death and is reckless as to whether
death ensues or not).
Modified Objective (reasonable person) Test (Creighton, 1993): Objective foresight of the risk of bodily harm
that is neither trivial or transitory in nature (foreseeability not required)

24
In terms of establishing the offence, the Crown must prove:

(1) Accused had the necessary mens rea for the commission of the unlawful act (such as assault); and
(2) Reasonable person would have foreseen the risk of bodily harm that is neither trivial or transitory
R v Creighton [1993 SCC] (drug-user-shoots-up-consenting-friend-dies)

REASONABLE STANDARD FOR OBJECTIVE MENS REA IS OBJECTIVE FORESIGHT OF THE RISK OF BODILY
HARM THAT IS NEITHER TRIVIAL NOT TRANSITORY IN NATURE. Accused charged with manslaughter by
means of unlawful trafficking of drugs when he injected cocaine into a (consenting) friend. SCC affirmed
manslaughter conviction using modified objective test: reasonable person would have been aware of the
risks of non-trivial, non-transitory bodily harm. Evidence of accused’s personal attributes (ie. age, experience,
education etc) is irrelevant unless it goes to the accused’s incapacity to appreciate or avoid the risk.
Assault
S. 267: Assault Causing Bodily Harm  Mens rea (Dewey, 1999): Crown must prove that reasonable person
would have foreseen the possibility of non-transient, non-trivial bodily harm (foreseeability not required)
S. 269: Unlawfully Causing Bodily Harm  Crown must prove that a reasonable person would have foreseen
the possibility of non-transient, non-trivial bodily harm. Unlawful act must be objectively dangerous
(DeSousa, 1992)
S. 268(1): Aggravated Assault  Mens rea (Mackay, 2005) (W (D.J.), 2012): (1) Prove mens rea for assault
(intent to apply force intentionally or recklessly or being wilfully blind to the fact that the victim does not
consent) and (2) Objective foresight of the risk of bodily harm
What is the difference between Section 220 Causing death by criminal negligence and Section 222(5)(b)
and Section 234 Manslaughter by Criminal Negligence?
Effectively none. The elements of the offence are the same, and their parallel existence is largely due to
historical circumstances. Section 220 offence was added to the Code in 1955 in part to respond to apparent
reluctance of juries to convict dangerous drivers (whose actions resulted in death of others) of manslaughter.
Overcriminalization: Can lead to uncertainty when 2 different offences criminalize something the same way.
R v Dewey (1999) (S. 267 Assault Causing Bodily Harm)

TO ESTABLISH MENS REA, THE CROWN MUST PROVE THAT A REASONABLE PERSON WOULD HAVE
FORESEEN THE POSSIBILITY OF NON-TRANSIENT, NON-TRIVIAL BODILY HARM. Note: Not necessary for the
Crown to prove that the specific type of harm inflicted would have been foreseen by a reasonable person.
R v DeSousa (1992) (S. 269 Unlawfully Causing Bodily Harm)

CROWN MUST PROVE THAT REASONABLE PERSON WOULD HAVE FORESEEN THE POSSIBILITY OF NON-
TRANSIENT, NON-TRIVIAL BODILY HARM. Unlawful act must be objectively dangerous.
R v MacKay (2005) and W.(D.J.) (2012) (S. 268(1): Aggravated Assault)

Mens rea for aggravated assault is:
(1) The mens rea for assault (intent to apply force intentionally or recklessly or being willfully blind to
the fact that the victim does not consent); and
(2) Objective foresight of the risk of bodily harm.

25
Constitutional Dimensions of Mens Rea

No constitutional reason to require that fault element include all elements of actus reus (not encompassed
by s. 7 of Charter) (R v DeSousa)  Ie. fault element for manslaughter only require that accused had
objective foresight actions would cause bodily harm
 However there MUST be a meaningful mental element demonstrated relating to a culpable aspect
of the actus reus
 Fundamental justice met if:
1. Element of mental fault is present
2. Mental fault required is proportionate to the seriousness of the offense’s consequences (stigma
associated with charge factored into proportionality)
R v Finta [1994] (senior-officer-concentration-camp)
TO ESTABLISH CRIMES AGAINST HUMANITY/WAR CRIMES, ACCUSED MUST ESTABLISH SUBJECTIVE MENS
REA FOR AWARENESS OF CONDITIONS RENDERING ACTIONS MORE BLAMEWORTHY THAN DOMESTIC
OFFENCES. Accused was senior officer in concentration camp in Hungary and was charged with war crimes
and crimes against humanity (s 7(3.71) of Code). Does the accused need to be aware (have subjective mens
rea) that their actions are within the definition of war crimes or crimes against humanity to be convicted of
these offences? Yes. Certain crimes require a higher level of mens rea (ie. subjective) due to the stigma
attached to a conviction, and war crimes fall into this category. Mens rea does not require that accused
believed those conditions to be inhumane, just that he was aware those conditions existed.
R v Vaillancourt
WHEN DEFINING OFFENSE’S MENS REA COURT MUST DETERMINE WHETHER THE CONDUCT IS
SUFFICIENTLY BLAMEWORTHY TO MERIT THE PUNISHMENT AND STIGMA THAT WILL ENSUE UPON
CONVICTION FOR THE PARTICULAR OFFENSE.
K ROACH – “MIND THE GAP: CANADA’S DIFFERENT CRIMINAL & CONSTITUTIONAL STANDARDS OF FAULT”
 Court has held that only certain offenses – murder, attempted murder and war crimes – have enough
stigma to constitutionally require proof of subjective fault for all elements of the mens rea
 Courts have limited the necessity to prove subjective fault for all elements of mens rea even though
there was common law support for such requirement before the Charter Thus, the principles of
subjective fault no longer commend the consensual support they once did
 Courts’ reluctance to constitutionalize subjective fault represent a lack of confidence in the wisdom
of universal application of subjective fault in favour of a more contextual and selective approach
 The unique treatment of s. 7 (it can only be limited by s. 1 in times of emergency) helps explain why
the Court has been to reluctant to constitutionalize criminal law faults of standard
SEXUAL ASSAULT: INTRO AND ELEMENTS

Sexual assault = s. 271
Sexual assault with a weapon, causing bodily harm, with threats, or with accomplices = s. 272
Aggravated sexual assault = s. 273
Sections on consent = s.273.1 and 273.2
Regulation admissibility victim’s prior sexual history = s. 276
Regulation of admissibility medical records (including psychiatric care) = s. 278.9
1992 Code Amendments:

• Redefined consent to mean the voluntary agreement to engage in the sexual activity in question;
• Removal of spousal immunity;
• Amended the Code so that consent is withdrawn if the complainant, having previously agreed to
engage in sexual activity, expresses by words or conduct a lack of agreement;

26
• Restricted the ambit of consent, such that there will be no consent where the complainant is
incapable of consenting, is induced to consent by abuse of a positon of trust, power or authority, or
if a third party purports to provide consent; and
• Restricted the circumstances under which mistake as to consent can act as a defence to a charge of
sexual assault.
ACTUS REUS OF SEXUAL ASSAULT
Involves five main parts:

1. The basic definition of assault (section 265);
2. Establishing that the assault was sexual in nature;
3. Reference to the specific definition of consent for the purpose of sexual assault under the Code;
4. Judicial interpretation of the meaning of consent and the role of the complainant’s subjective views;
5. Common law restrictions that vitiate consent.
R. v. Ewanchuk [1999] established 3 elements for actus reus of sexual assault:

(1) Touching;
(2) The sexual nature of the conduct; and
(3) The absence of consent.
Note: The charging provision will be either section 271 (sexual assault), section 272 (sexual assault with a
weapon, threats to a third party or causing bodily harm) and section 273 (aggravated sexual assault).
(1) Touching and the definition of assault: Crown has to establish that the actus reus of an assault
under Section 265(1) is made out.
(a) There has been an application of force, directly or indirectly, to another person without that
person’s consent (s. 265(1)(a)): or
(b) There has been an attempt or threatening by acts or gestures to apply force if it causes the other
person to believe upon reasonable grounds that the accused has the ability to effect his or her
purpose (s. 265(1)(b)).
(2) The sexual nature of the conduct: The meaning of sexual for the purposes of sections 271-273 is not
defined in the Code. Courts have held that the question is whether the conduct in question can be
objectively viewed as sexual (reasonable person standard).
 The intent or motive of the accused to gain sexual gratification from the assault is not
determinative of the question of whether the conduct is sexual, but can be considered. Code
does not require that the touching be for a sexual purpose (R. v. Lutoslawski [2010])
 In determining whether the assault was sexual in nature, the courts will examine all of the
circumstances, including: “part of the body touched, nature of the conduct, the words and
gestures accompanying the act and all other circumstances.” (R. v. Chase [1987])
(3) The absence of consent: According to s. 273.1(1), for the purposes of s. 271, 272, and 273 consent is
defined as the voluntary agreement of the complainant to engage in the sexual activity in question
Principles set out in R v Ewanchuk (1999 SCC):

 (1) Absence of consent is “subjective and determined by reference to the complainant’s state of
mind towards the touching at the time that it occurred.”
 (2) If the complainant says that she did not consent, then the court is bound to accept this as
true unless she is not a credible complainant (if there is evidence that shows she is lying).

27
 (3) The accused’s perception of the complainant’s state of mind is not relevant when
determining if there was consent for the purpose of establishing the actus reus of the offence
 (4) There is no defence of implied consent – consent can not be inferred or implied from the
conduct of the complainant (or by reference to some objective standard).
Factors that can serve to vitiate (invalidate) consent:

 (1) Section 265(3): consent cannot be given in response to an assault or the threat of an assault
o Fraud only invalidates consent when the fraud goes to the identity of the accused or the
nature of the act  Exception: R. v. Cuerrier [1998]: failure to disclose the existence of
an STD could serve to invalidate consent if the failure to disclose would have “the effect
of exposing the person consenting to a serious risk of physical harm.”
 (2) Section 273.1(2)
 (3) Application of common law principle that you cannot consent to bodily harm (the Jobidon
principle) to cases of sexual assault.
SCC has held that a complainant cannot give advance consent to sexual activity  R. v. J.A. [2011]: Wording
of s 273.1(1) shows Parliament’s intent to define consent to require consciousness throughout the sexual
activity in question (otherwise would negate complainant’s ability to withdraw consent at any time)
Jobidon [1991] principle: Consent cannot be a defence to an assault if the assault may cause "serious hurt or
non-trivial bodily harm." Consent to sexual activity can be invalidated where the accused intends to (and
causes) serious bodily harm. (R v Welch, 1995)
R v K.B. [1993] (father-grabbed-son’s-genitals-as-punishment)

SEXUAL CONTACT IS MEASURED BY AN OBJECTIVE STANDARD AND DOES NOT HAVE TO BE FOR A SEXUAL
PURPOSE. Father grabbed his three-year-old son by the genitals (causing bruising and severe pain) in an
effort to discipline him. Context was that the son had been grabbing the genitals of others, and so the father
was attempting to teach him a lesson. Court held that because the touching invaded the child’s sexual
integrity, it constituted a sexual assault (regardless of father’s subjective intent).
R v Ewanchuk [1999] (guy-interviews-girl-in-trailer-begins-sexual-touching)
THERE IS NO DEFENCE OF IMPLIED CONSENT IN SEXUAL ASSAULT. ABSENCE OF CONSENT IS SUBJECTIVE. E

brought a 17-yo woman into his van for a job interview. Once inside, he started to massage her and then
began to make a series of sexual advances. Every time she would say "no" to his advance, he would stop but
then continue again. She testified at trial that during her time in the trailer she was very afraid and thus did
not take further action to stop the sexual conduct. Does accused have defence of implied consent? NO. Court
established actus reus for sexual assault: (1) Touching (objective); (2) Sexual nature of the contact
(objective); and (3) Absence of consent (Subjective – determined by reference to plaintiff’s subjective internal
state of mind towards the touching at the time it occurred)  Consent must be freely given – cannot be
result of fear, threats, or submission by force
R v Chase [1987 SCC] (neighbor-grabs-girl’s-breasts)

SEXUAL NATURE OF CONDUCT IS AN OBJECTIVE STANDARD. Accused was 15 yo complainant’s neighbor and
entered her home without invitation. Chase seized the complainant and grabbed her breasts. She fought back
and he tried to grab her privates, but she managed to get away and call a neighbor. Objective Test: (1)
Assault is committed; (2) Would an outside observer deem the accused’s conduct as being sexual in nature?
 Based on: part of body touched, nature of the contact, situation in which contact occurred, words and
gestures accompanying the act and circumstances surrounding the conduct

28
R v Cuerrier [1998] (failure-to-disclose-STD)

FRAUD INVALIDATES CONSENT WHEN FRAUD GOES TO THE NATURE OF THE ACT OR IDENTITY OF THE
ACCUSED. Failure to disclose the existence of an STD could serve to invalidate consent if failure to disclose
would have “the effect of exposing the person consenting to a serious risk of physical harm.” Crown must
prove that the complainant would have refused to have unprotected sex with the accused if they had known.
R v JA (2011 SCC) (guy-had-sex-with-“consenting”-unconscious-GF)

CONSENT REQUIRES THE PLAINTIFF TO PROVIDE ACTIVE CONSENT THROUGHOUT EVERY PHASE OF THE
SEXUAL ACTIVITY. NOT POSSIBLE FOR UNCONCIOUS PERSON TO SATISFY THIS REQUIREMENT EVEN IF
CONSENT IS GIVEN IN ADVANCE. Accused and complainant were having consensual sex, they were partaking
in erotic asphyxiation and the complainant passed out. While she was passed out he continued to perform
sexual acts on her, when she came back into consciousness they continued to have consensual sex. Can one
give consent to sexual activity in advance? No; otherwise would negate complainant’s ability to withdraw
consent at any time as opposed to Parliament’s intended definition of consent. Accused must not only
believe the plaintiff had consented, but that he also took necessary steps to ensure plaintiff was consenting
to activity at time it occurred.
R v Morgan (1976) (man-told-others-wife-liked-rough-sex)

CANNOT CONSENT ON SOMEONE’S BEHALF. Man told strangers he met at bar that his wife likes to have
random rough sex with strangers and to ignore her protests because it was all part of the game.
R. v. Welch (1995) (severe-degrading-sex-bruises)

CANNOT CONSENT TO SEVERELY INHERENTLY DEGRADING/DEHUMANIZING CONDUCT. Complainant
sustained bruising from a beating with a belt and bleeding from her rectum for a number of days after sexual
activity with the accused. The complainant claimed she did not consent to the conduct. Even if assuming
consent was given: cannot detract from the inherently degrading/dehumanizing nature of conduct. Although
law must recognize individual freedom/autonomy, when the activity involves pursuing sexual gratification by
deliberately inflicting pain upon another that gives rise to bodily harm, then personal interest of individuals
involved must yield to the more compelling societal interests which are challenged by such behaviour.
MENS REA OF SEXUAL ASSAULT
Criminal Code does not specify the mens rea for sexual assault under s 271, 272, or 273.
Elements of Mens Rea:
(1) Intentional touching of the complainant (subjective)intent to apply force as per s 265(1)(a)
(2) Knowledge that the complainant does not consent or being reckless or wilfully blind as to the
complainant’s lack of consent. (Sansregret v. The Queen [1985] SCC)
Consent
Issue of Consent
Actus reus: Consider the question of consent from the perspective of the complainant.
Mens Rea: Consider the question of consent from the perspective of the accused.
Honest Mistaken Belief in Consent: denial of the second mens rea [Section 265 (4)]

29
- Defense of Mistake of Fact: Accused who commits actus reus of offense but acts innocently pursuant
to flawed perception of the facts Raises question of whether the accused believed the plaintiff had
communicated consent (through words and/or conduct) in the sexual activity in question
- Mistake need only be subjective (R v Pappajohn [1980])
o  Despite lack of objective reasonableness standard, the existence (or absence) of
reasonable grounds for the accused’s belief is relevant to the question of whether the belief
was genuinely held (believability)
o R. v. Park [1995]: In order to establish honest but mistaken belief, the defence will need to
demonstrate that there is “an air of reality” to the claim that there was an honest belief in
consent.  bare assertion not sufficient
 Silence, passivity or ambiguous conduct does not meet the requirements for the
defense of mistake
 Continuing sexual activity after the plaintiff has expressed a “no” is at minimum reckless
conduct that is not excusable
This defence is restricted under Section 273.2:

It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the
complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time,
to ascertain that the complainant was consenting.
(a)(i) Self induced intoxication and sexual assault  not a defence to crimes of general intent (that is,
crimes where the intent does not go beyond the commission of the prohibited act (as opposed to extending
to the consequences of that act). Courts have consistently held that sexual assault is a crime of general
intent because it is a crime of violence that does not require proof of a desire for sexual gratification
 Therefore, evidence of intoxication is not capable of raising a reasonable doubt as to the general
intent required for sexual assault.
 R. v. Daviault [1994] raised the possibility that the accused in a sexual assault case might be able to
raise the defence of extreme intoxication producing involuntary conduct  led to amendments of
S. 33.1 to 33.3 of the Code
(a)(ii) Wilful Blindness  S. 273.2.(a)(ii) effectively codifies the wilful blindness principles expressed in
Sansregret and rules out the defence of honest mistaken belief as to consent in circumstances where the
accused was subjectively aware of the need to inquire into consent but then deliberately failed to inquire.
(b) Requirement to take reasonable steps, in the circumstances known to the accused at the time, to
ascertain that the complainant was consenting:
(1) The requirement that the accused take reasonable steps is based on what he subjectively knows
at the time [subjective element]; but
(2) S. 273.2 also requires that the accused act as a reasonable person would in the circumstances –
specifically by taking reasonable steps to ascertain whether the complainant was consenting.
 The accused may not have a mistaken belief defence if he only claims not to have heard the victim
say no  must also take reasonable steps to ascertain consent (Ewanchuk)

**To make out the defence of honest but mistaken belief in consent (deny the mens rea required for
sexual assault) defence must establish that the accused believed the complainant COMMUNICATED

30
consent to engage in the sexual activity in question AND took reasonable steps to ensure that the victim
had consented to the sexual activity in question**
R v Pappajohn [1980 SCC] (mistake-of-fact-defence)

MISTAKE OF FACT DEFENCE CAN BE SUBJECTIVE BUT NEEDS TO HAVE AN AIR OF REALITY. Accused and
complainant had lunch, then went back to his house. 3 hours later complainant ran naked out of the house
gagged and bound. Complainant denied consent, testifying that she had physically and mentally resisted
throughout. Accused claimed that the sexual activity was done with her consent and that the gagging was
done for sexual purposes and that she suddenly became hysterical and screamed at that point. While the
defence of mistake uses subjective standard, the mistake must be a reasonable one as their must be an “air
of reality” in order for the evidence to lead to the raising of this defence. Applied here as testimonies and
facts overlapped somewhat.
R v Hutchinson (guy-pokes-holes-in-condom)
CONSENT CAN BE VITIATED BY FRAUD. GF refused to have unprotected sex. Accused poked holes in condom
and GF got pregnant as a result. Was her consent vitiated by fraud? Yes (use Cuerrier test): Dishonesty: use
of sabotaged condoms constituted a dishonest act; Deprivation or harm: Hutchinson’s actions deprived a
woman of the capacity to choose to protect herself from an increased risk of pregnancy by using effective
birth control. Pregnancy causes profound changes to woman’s body and therefore the deprivation was
serious as the “significant risk of serious bodily harm”
Sexual Assault in the Context of Fraud
Section 265(3): Fraud only invalidates consent when the fraud goes to the identity of the accused or the
nature of the act  Exception: R. v. Cuerrier [1998]: failure to disclose the existence of an STD could serve to
invalidate consent if the failure to disclose would have “the effect of exposing the person consenting to a
serious risk of physical harm.”
(i) Fraud as to nature of the act: Ex. A doctor obtains consent from a patient to perform a medical
procedure, and then engages in sexual activity with them.
(ii) Fraud as to identity: Ex. The accused impersonates the partner of the victim while in a darkened room,
leading the victim to provide consent to sexual activity.
R v Cuerrier [1998] (failure-to-disclose-STD)

FRAUD INVALIDATES CONSENT WHEN FRAUD GOES TO THE NATURE OF THE ACT OR IDENTITY OF THE
ACCUSED. Failure to disclose the existence of an STD could serve to invalidate consent if failure to disclose
would have “the effect of exposing the person consenting to a serious risk of physical harm.” Crown must
prove that the complainant would have refused to have unprotected sex with the accused if they had known.
Petrozzi (1987) (refused-to-pay-for-sex-services-consent-valid)

FOR THE PURPOSES OF S. 265(3), FRAUD IS RESTRICTED TO THE NATURE OF THE ACT OR IDENTITY OF THE
PERSON. Accused promised to pay a sex worker for sexual services, then refused to pay after the service was
provided. Even though the court was satisfied that the accused never had any intention of paying for the
service, the consent was held to be valid + he was acquitted of sexual assault b/c there was no fraud as to the
nature of the act or the identity of the accused.
Decision in Cuerrier led to the adoption of a new test for fraud. In order to establish fraud, need to prove:
1. The accused committed an act that a reasonable person would see as dishonest;

31
2. There was a harm, or a risk of harm, to the complainant as a result of that dishonesty; and
3. The complainant would not have consented but for the dishonesty by the accused.
Some key policy arguments about extending the definition of fraud to include failure to disclose HIV-status:
1. Criminalizing a failure to disclose HIV status may deter some sexually active individuals from getting
tested for HIV; and
2. Criminalizing a failure to disclose HIV status may have a negative impact on doctor-patient
relationships if doctors fear being compelled to give evidence as to a patient’s HIV status.
R v Mabior (2012) (HIV-guy-had-sex-without-disclosing-HIV-status)

ELEMENTS OF AGGRAVATED SEXUAL ASSAULT ARE MET IF A PERSON HAS SEX WITHOUT DISCLOSING THEY
ARE HIV POSITIVE AND THERE IS A REALISTIC POSSIBILITY OF TRANSMISSION. Mabior had sex with many
ladies at his place without disclosing his HIV positive status. He had a low viral count but did not always wear
a condom. Is he guilty of aggravated sexual assault? Not for cases where he wore condom; low viral count +
use of condom does not meet realistic possibility of transmission requirement. Court clarifies elements of
test set in Cuerrier for fraud vitiating consent: (1) a dishonest act (either falsehoods or failure to disclose HIV
status); and (2) deprivation (denying the complainant knowledge which would have caused her to refuse
sexual relations that exposed her to a significant risk of serious bodily harm).
Rule from Mabior: An accused person must disclose their HIV-positive status is there is a “realistic possibility
of transmission of HIV.” Failure to disclose will amount to fraud for the purposes of S 265(3) + S 273.
Policy concerns surrounding criminalizing non-disclosure of HIV-status + unprotected sex:

 There is always a problem with terms like “low” or “high” that are relative terms
 Is it fair to punish people who are victims of “bad moral luck?” (no one develops HIV intentionally)
SCC took the view that failure to disclose is sufficiently blameworthy to justify the use of the criminal law,
primarily because subjecting one’s partner to the possibility of HIV infection constitutes a serious risk to life.
HOMICIDE
The Code contains three homicide offences:
• Murder (s.229)
• Manslaughter (s.234)
• Infanticide (s.223(1)
Note that according to S. 234, manslaughter is in effect a residual offence. That is, a culpable homicide that is
not murder or infanticide is deemed to constitute manslaughter under the Code. Manslaughter generally
does not include an intention to cause death. Mandatory penalty for murder is life imprisonment.
However: In cases of manslaughter (without the use of a firearm), there is no mandatory minimum penalty.
ACTUS REUS OF HOMICIDE

Central to the actus reus of all homicide offences is the death of another human being.
Section 223 (1)

A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living
state, from the body of its mother, whether or not
(a) it has breathed;

32
(b) it has an independent circulation; or

(c) the navel string is severed.
(2) A person commits homicide when he causes injury to a child before or during its birth as a result of which
the child dies after becoming a human being.
Causation
Section 222(1)
A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being
Where the factual situation does not fall within one of the statutory rules of causation in the Code, common
law general principles of criminal law apply to resolve any causation issues that may arise (R v Nette)
General Principles of Causation in Homicide
Factual Causation (“but for” test): But for the accused’s conduct, the prohibited consequences would not
have occurred. Need to establish whether the accused’s conduct is part of some “chain of causation” that led
to the prohibited conduct. (R v Winning, 1973)
Legal Causation: (de minimis test): Accused’s conduct must be at least a contributing cause of death outside
of de minimis range (R v Smithers, 1977, R v Winning, 1973)  Should the accused be held responsible for
the prohibited consequence?
 A person can be held liable for manslaughter even if their unlawful acts were not the primary cause
of death and even if death was not a foreseeable outcome of their unlawful act, as long as their
actions were a de minimus cause
 Thin skull rule (take the victim as you find them) applies in the context of homicide (ie. a minor
assault followed by a fatal heart attack (which resulted in part from the anxiety caused by the
assault) was sufficient to establish causation, even though the victim had a history of severe heart
disease (R. v. Shanks (1996))  victim’s characteristics do not have to be foreseeable (R v Blaue)
 Nette (2001) confirmed the test in Smithers, but reformulated the wording (drawing on Harbottle
[1993]) such that the Crown must establish established that accused’s conduct must be a significant
contributing cause of death. Court noted that phrases such as “not a trivial cause” and terms like de
minimus are rarely helpful
 Maybin (2012): Supreme Court confirmed that the key issue is whether the accused actions still
constituted a significant cause of death (test in Nette)
o Court confirmed that test applies to all forms of homicide
o But test is different in the context of first degree murder (actions must “form an essential,
substantial and integral part of the killing of the victim” as per Harbottle, 1993)
o Higher threshold for first degree murder: In order to establish first degree murder under
S.231(5) [then 214(5)], the Crown must prove that the the accused’s participated in the
murder in such a way that he was a substantial cause of the death of the victim.
 A person is responsible for a death even though it might have been prevented by resorting to proper
means ie. proper medical treatment (S. 224).
 A person who causes a dangerous injury which results in death will be responsible for that death,
even if the immediate cause of the death is proper (or improper) treatment provided in good faith.
 (S 225)  ie. Doctor’s treatment, even if negligent, will not break the chain of causation
 Accused can be held to have caused death even if the injury from their act can only be said to have
“accelerated” the death. (S 226)
Section 222(5)(c) + Section 222(5)(d):

(5) A person commits culpable homicide when he causes the death of a human being

33
(c) by causing that human being, by threats or fear of violence or by deception, to do anything that
causes his death; or
(d) by wilfully frightening that human being, in the case of a child or sick person.
Intervening Acts
General rule (R v Maybin, 2012): If the intervening act is reasonably foreseeable, then it does not
necessarily break the chain and the accused will continue to be responsible for the harm.
Where the intervening act is the intentional act of another person, the court is less likely to conclude that it
is part of the chain and instead hold that it severs the chain and relieves the accused of liability.
Analytical tools set out in Maybin (2012):

1. Was the intervening act foreseeable?
2. Was the intervening act independent of the accused’s actions?
3. Are the accused’s actions a significant contributing cause of the victim’s death? (Nette)
Sets up two analytic tools for measuring causation when there is an intervening action:
1. Foreseeability – intervening acts that are reasonably foreseeable will usually not break chain of
causation so as to relieve offender of legal responsibility for unintended result
a. Requires an objective standard of reasonability (general nature of intervening act and
accompanying risk of harm needs to be what can reasonably be foreseen)
2. Independent act severing line of causation - did the accused’s act merely set the scene for the
independent intervening act or did the accused’s act trigger the intervening act?
Given the decision in Maybin, where an intervening act that contributes to the death of the victim is
unforeseeable, it is more likely to be regarded as breaking the chain of causation. Similarly, where the act is
independent of the accused, it is more likely to be regarded as breaking the chain of causation.
MANSLAUGHTER

S 222(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act;
(b) by criminal negligence;
(c) by causing that human being, by threats or fear of violence or by deception, to do
anything that causes his death; or
(d) by wilfully frightening that human being, in the case of a child or sick person.
Manslaughter is a residual offence. In practice, manslaughter typically involves two broad situations:
(i) Killings where it is not possible to establish the mens rea for murder; and
(ii) Killings that are the unintentional result of conduct that constitutes a marked departure
from the reasonable standard.
Point: Issue in many homicide cases is whether there is sufficient evidence (of mens rea) to establish murder
Actus Reus for Manslaughter

34
R. v. Creighton [1993 SCC]: Crown must establish the independent fault that there is a reasonable
foreseeability of the risk of bodily harm that is not trivial or transitory. Doesn’t require foresight of death,
just foresight of bodily harm (consistent with thin skull rule).
Look to a general conception of the reasonable person (as opposed to a reasonable person with the
characteristics of the accused). Because to do otherwise would make it difficult to hold people accountable
for their dangerous actions. Exception: Those who lack the necessary capacity to appreciate the relevant risk.
Unlawful Act Manslaughter
Section 222(5): A person commits culpable homicide when he causes the death of a human being
(a) by means of an unlawful act
R. v. Gosset [1993 SCC]: When dealing with questions of unlawful act manslaughter, at a minimum the
conduct of the accused must constitute a marked departure from a reasonable standard of care, even in
situations where the relevant unlawful act was one that appears to involve a lesser form of negligence - such
as careless use of a firearm.
 If a strict liability offence is to be used as the for an unlawful act in a manslaughter charge, then it
likely that the strict liability offences will be “read up” to require the Crown to prove a marked
departure from a standard of reasonable conduct.
Structure of the offence of Unlawful Act Manslaughter (Actus Reus):

1. The actus reus of the offence is a significant contributing cause of the death of another human
being. (Smithers; Nette)
2. Unlawful act can include any federal or provincial offence. R. v. DeSouza [1992 SCC].
3. However: The Court also noted that the offence cannot be an absolute liability offence (ie. must be
a mens rea element) and it must be objectively dangerous (R. v. DeSouza [1992 SCC])
Mens Rea requirement:

Two layers of fault need to be proved in order to establish liability for unlawful act manslaughter:
1. Mens rea for the underlying (unlawful) act (generally just basic intent ie. S. 265 assault: intentional
application of force). If the underlying offence is one of strict liability or negligence, then must at
least establish that the conduct is a marked departure from a reasonable SOC (R v Gosset, 1993)
2. That it was objectively foreseeable that the unlawful act gives rise to a risk of bodily harm that is
neither transitory nor trivial (not enough to simply establish that the accused intended the
underlying unlawful act) (R v Creighton)
R v Creighton [1993 SCC] (drug-user-shoots-up-consenting-friend-dies)

REASONABLE STANDARD FOR OBJECTIVE MENS REA IS OBJECTIVE FORESIGHT OF THE RISK OF BODILY
HARM THAT IS NEITHER TRIVIAL NOT TRANSITORY IN NATURE. Accused charged with manslaughter by
means of unlawful trafficking of drugs when he injected cocaine into a (consenting) friend. SCC affirmed
manslaughter conviction using modified objective test: reasonable person would have been aware of the
risks of non-trivial, non-transitory bodily harm. Evidence of accused’s personal attributes (ie. age, experience,
education etc) is irrelevant unless it goes to the accused’s incapacity to appreciate or avoid the risk.
Actus Reus: Accused committed an unlawful act (administering a narcotic) which resulted in victim’s death
Mens Rea: Accused clearly intended to administer prohibited narcotic to the victim  court will infer
objective foresight of harm where the underlying unlawful act is manifestly dangerous.

35
Sinclair (2008)  Convicted of unlawful act manslaughter: The victim (a 4-year old girl) refused to go to bed;
in response her father picked her up, shook her, and threw her on to her bed. Victim bounced off the bed,
struck the wall, and fell to the floor. Fall resulted in a traumatic brain injury which later caused her death.
Criminal Negligence Manslaughter
S 222(5): A person commits culpable homicide when he causes the death of a human being
(b) by criminal negligence
Identical offence (Causing Death by Criminal Negligence) S 220:

Every person who by criminal negligence causes death to another person is guilty of an indictable offence
Actus Reus: Same as for other forms of homicide. Start with S. 219(1) (below)
Crown must establish that the accused failed to perform a “duty imposed by law” and this failure caused the
death of the victim (R. v. J.F.)
Mens Rea: Question of fault. Start with:

S 219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the
lives or safety of other persons.
Objective standard (Creighton [1993]): Crown must establish that the behaviour of the accused represented
a marked and substantial departure from the standard of reasonable care expected of a reasonable person
in the circumstances (confirmed in R. v. J.F., 2008)
Additional points to note from Creighton:

. (1) Court will not impute the particular characteristics of the accused (such as age and education) to the
reasonable person unless those characteristics would leave the accused incapable of appreciating
the relevant risk.
. (2) Objective foresight of death is not required. Court specifically rejected the idea that the fault element
must relate to all aspects of the actus reus of manslaughter.
R v J.F. (2008) (child-beaten-by-foster-mother-died)

CRIMES WHICH HAVE AN EXTERNAL NEGLIGENCE ELEMENT REQUIRE A MARKED DEPARTURE FROM THE
SOC; MANSLAUGHTER BY CRIMINAL NEGLIGENCE REQUIRES A MARKED + SUBSTANTIAL DEPARTURE FROM
THE SOC. 4 yr old child (M) was beaten by his foster mother; suffered extensive bruising + multiple blunt
traumas to his head, causing death. She plead guilty to manslaughter. M's foster father (J.F.) was charged
with manslaughter by criminal negligence under S 222(5)(b) and unlawful act manslaughter under S 222(5)
(a) (underlying offence was failing to provide necessaries of life, S 215). He was convicted by jury of
manslaughter by criminal negligence but acquitted of unlawful act manslaughter. He appealed the conviction.
Is a conviction for manslaughter by criminal negligence + an acquittal for manslaughter by failing to
provide for the needs of a child inconsistent verdicts? Held: Acquitted of manslaughter by criminal
negligence.
Analysis: J.F.'s guilt depended on exactly the same failure to perform exactly the same duty: the duty to
protect his foster child from foreseeable harm from his spouse. Verdicts are inconsistent: signify that a lesser
degree of fault was not established whereas a greater degree of fault was proven beyond a reasonable
doubt. Failure to provide the necessaries of life required proof of a marked departure from the conduct of a

36
reasonably prudent parent in circumstances where it was objectively foreseeable that the omission would
lead to a risk of danger to M’s life. Criminal negligence, the more serious offence, required proof that the
same omission represented a marked + substantial departure from the conduct of a reasonably prudent
parent in circumstances where the accused either recognized and ran an obvious and serious risk to M’s life
or gave no thought to that risk.
Unlawful act manslaughter should be found first (easier to prove re: mens rea and less serious offense).
(Debatable). Where criminal negligence + failure to provide the necessaries of life are alleged, the jury first
should consider whether the accused failed a duty to provide the necessaries of life, then should consider
whether the accused, in failing to provide the necessaries of life, showed a wanton or reckless disregard for
the life or safety of the child. If so, the jury is bound to find the accused guilty of criminal negligence.
Only after it has satisfied itself that the accused is guilty of unlawful act manslaughter should the jury then
consider whether the accused had the mens rea for criminal negligence manslaughter (did the failure
constitute a marked and substantial departure?)
If YES: Criminal negligence manslaughter If NO: Unlawful act manslaughter
The main distinction between unlawful act manslaughter and criminal negligence manslaughter is that where
the unlawful act is a crime of negligence, the Crown need only prove a marked departure from standards of
reasonable conduct. In contrast: In cases of criminal negligence manslaughter, the Crown must prove a
marked + substantial departure from reasonable conduct.
Deschamps J.: Verdicts not inconsistent because the two offences rely on different actus reus:
. (1) Unlawful act manslaughter (failure to provide the necessaries of life – Section 215 the underlying
offence): Failure of the duty must, when viewed objectively, endanger the victim’s life or
permanently endanger the victim’s health.
. (2) Criminal negligence manslaughter: Failure of this duty must show a wanton or reckless disregard for
the lives or safety of others.
**Manslaughter by criminal negligence has a more onerous/ higher fault requirement than that required for
unlawful act manslaughter in situations where the unlawful act is a negligence-based offence (such as failing
to provide the necessities of life or careless use of a firearm).
Unlawful act manslaughter: “marked departure” (read up from S 215)

Criminal neg. manslaughter: “marked and substantial departure”
In most other respects, unlawful act manslaughter and criminal negligence manslaughter are identical:
• The actus reus for both offences is the same (accused's actions must be a significant cause of death);
• Nature of duty for mens rea is similar
• Both require reasonable foresight of harm (but not death); and
• Both use a “non-individuated” reasonable person standard (i.e. one that does that does not consider
the characteristics of the accused, except where those characteristics effect the capacity of the
accused to appreciate the risk).
Second Degree Murder
Murder is classified as second degree if it falls within the scope of one of the categories set out in S 229(a)
[intentional or reckless killing], S 229(b) [transferred intent] or S 229(c) [unlawful object].

37
Actus Reus: Same as manslaughter (directly or indirectly causing the death of another human being)
There needs to be some degree of coincidence between the act (actus reus) + intent (mens rea) for murder
under S 229(1)(a).
Rule in R v Cooper (1993): Correspondence is established provided that there is sufficient overlap between
actus reus + mens rea: “[I]f death results from a series of wrongful acts that are part of a single transaction
then it must be established that the requisite intent coincided at some point with the wrongful acts.”
Mens Rea: There are 3 basic ways in which a culpable homicide can be classified as (second degree) murder
a. Intentional or reckless killing;
b. Transferred intent; or
c. Unlawful object.
Intentional or Reckless Killing
S 229(a)(i) [Intentional killing]: (Vaillancourt (1987 SCC))

 Subjective foresight of the likelihood of causing death
+
 Intention to cause that death
S 229(a)(ii) [Reckless killing]

 Subjectively intended to cause bodily harm to the victim
+
 Subjective knowledge that the bodily harm was of such a nature as likely to result in death.
o (R v Simpson, 1981 held that objective test was incorrect)
Rule in R. v. Cooper [1993]: Correspondence is established provided that there is sufficient overlap between
the actus reus and the mens rea. Practical effect: Provided that the actus reus and the mens rea coincide at
some point during the relevant course of events leading to the death, it does not matter that the victim died
sometime after the accused ceased to have the requisite mens rea.
Transferred Intent
Section 229 Culpable homicide is murder

(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm
that he knows is likely to cause his death, and being reckless whether death ensues or not,
by accident or mistake causes death to another human being, notwithstanding that he does not
mean to cause death or bodily harm to that human being
Under this section, the mens rea of intentionally or knowingly causing death to one person is transferred to
act of killing the eventual victim.
R. v. Droste (No. 2) (1984 SCC) (accidentally-killed-children-instead-of-wife-during-fire)

Accused set out to kill his wife by setting fire to their car. Fire led to the death of two children who were
buckled into the backseat of the car (they died of asphyxiation). Held: Guilty of murder of the children.
Because the attempted murder of the wife was planned and deliberate, the intent and guilty knowledge (that
death would result) could be transferred to the children's deaths.

38
R. v. Fontaine (2002) (planned-suicide-killed-car-passenger-instead)

TRANSFERRED INTENT DOES NOT APPLY IN SITUATIONS WHEN THE ACCUSED INTENDS TO KILL HIMSELF
BUT ENDS UP KILLING ANOTHER PERSON. Why? B/c person who intends to kill himself does not have the
level of moral blameworthiness required for murder. Fontaine was driving with two other people in his car &
was involved in a high-speed chase. He intended to commit suicide and ran the car into a parked trailer. He
did not die, but one of his passengers in the car did. A CRIME THAT REQUIRES SPECIFIC INTENT (IE. MURDER)
WILL NOT BE SATISFIED BY TRANFERRING GENERAL INTENT.
Unlawful Object
S 229 Culpable homicide is murder (c) where a person, for an unlawful object, does anything that he knows
or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that
he desires to effect his object without causing death or bodily harm to any human being.
Elements of S 229(c):
(1) For an unlawful object: Pursuit of a serious crime "clearly distinct from the immediate object of the
dangerous (unlawful) act." [R. v. Vasil [1981])
Example: A kills a bystander in the course of gun battle on a Toronto street. Court held that firing the
gun was a dangerous act (required by the section) in pursuit of an unlawful purpose (killing another
gang member) [R. v. J.S.R. 2008 ONCA]
(2) [person does] anything that he or she knows: For mens rea, subjective test is required (Vaillancourt
[1987]; R. v. Martineau [1990]; R. v. Shand 2011)
(3) or ought to know is likely to cause death and
(4) causes death.
Vaillancourt v the Queen [1987 SCC] (robbery-with-knife-friend-shot-someone)

ALL CRIMES WITH SIGNIFICANT STIGMA ATTACHED IE. CULPABLE HOMICIDE REQUIRE AT LEAST PROOF OF
OBJECTIVE FORESIGHT OF DEATH BEYOND A REASONABLE DOUBT. V was convicted of 2nd-degree murder
resulting from a robbery of a pool hall. He had a knife + thought that his friend also had a knife when in fact
his friend had a gun. He explicitly told his friend before the event that he did not want to have guns involved.
During the robbery, his partner fired a shot and someone was killed. The charge falls under s.230(d) which
negates any necessity for mens rea of killing to be proven before a conviction can be entered. Is s.230(d) of
the Criminal Code contrary to s.7 of the Charter because it imposes absolute criminal liability? Held: Yes;
Lamer (majority) clearly decides that this section is contrary to the Charter as it establishes an absolute
criminal liability. He states that it is a principle of fundamental justice that there must be at least a minimal
mental state requirement before criminal liability can be imposed. A failure to require this is contrary to s.7.
(Subjective foresight requirement discussed in obiter).
R v Martineau [1990 SCC] (B&E-turned-murder)

A PERSON CANNOT BE CONVICTED OF MURDER WITHOUT SUBJECTIVE FORESIGHT OF DEATH. M + friend
were out with weapons (pellet gun + rifle), knowing they were going to commit a crime. Martineau thought
that they were only going to commit a "B & E". They broke into a trailer, robbed the occupants, before M’s
friend shot them. M is charged with murder under S. 230(a). Does a charge of murder require intent and is it
subjective or objective intent that is required? Held: Subjective foresight required. Lamer, states that all
murders should require subjective intent, as it is the most heinous and punished crime, and therefore this
high threshold should be set.

39
R v Shand (2011) (gun-discharged-killed-occupants)

IMPORTANCE OF SUBJECTIVE FORESIGHT OF DEATH: ACCUSED MUST KNOW THAT DEATH WAS LIKELY TO
OCCUR AND NOT JUST A RISK OR POSSIBILITY. S + 2 others went to a drug dealer’s home to rob him. During
the robbery he produced a loaded gun to subdue the occupants of the basement, which discharged & killed
one of them. Accused was convicted of 2nd degree murder. Issue: Is s. 229(c) unconstitutional b/c it permits a
murder conviction w/o proof of intent to cause serious bodily harm? Held: Only “ought to know” section is
unconstitutional.
How does Section 229(c) relate to Section 229(a)? The key lies in the requirement in R. v. Vasil – i.e. that the
unlawful object must be the pursuit of a serious crime "clearly distinct from the immediate object of the
dangerous (unlawful) act."
FIRST DEGREE MURDER

According to S 231, murder is classified as either first or second degree. The section sets out a range of
circumstances in which the murder will be considered to be first degree:
1. Planned and deliberate (S. 231(2));
2. Contracted murder (S. 231(3))
3. Where the victim is (S. 231(4)):
(a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff’s officer;
(b) a warden, deputy warden, instructor, keeper, jailer, guard or other employee of a prison;
(c) a person working in a prison with the permission of the prison authorities.
4. When the death is caused by that person while committing or attempting to commit an offence
under one of the sections listed in s. 231(5))
Charging and Sentencing

(1) In cases of first degree murder, the accused will be charged under S 229 (the general provision for
murder) and S 231 (the specific provision setting out the conditions for first degree murder).
(2) Although all murder convictions automatically give rise to a mandatory life sentence, in cases of first
degree murder the accused will be ineligible for parole for twenty-five years (S 745(a))
Actus Reus
Same as other forms of homicide – set out in S.222 (see Causation above - Nette test is now the general test
for causation in cases of homicide in Canada)
Harbottle held that in order to secure a conviction under S 231(5), the Crown must prove that the actions of
the accused formed “an essential, substantial and integral part of the killing of the victim.”
Three key aspects of the decision in Nette:

1. Affirmed the earlier decision in Harbottle and the applicability of the “substantial causation
standard” to cases of first degree murder under S 231(5)
2. Extended the application of the “substantial causation” test to first degree murder under S 231(6)
3. Explicitly stated that the “substantial causation” test does not apply to all forms of first-degree
murder. Does not apply to Section 231(2), Section 231(3), or Section 231(4).
Exception: See intervening causes above.
Mens Rea
For first degree murder, Crown must prove:

40
1. Mens rea for murder as set out in Section 229(a):

Must prove that the accused intended to kill the victim or meant to cause bodily harm that is likely
to cause death and is reckless as to whether death ensues or not. AND
2. Fault consistent with one of the categories set out in Section 231(1)-(6).
Planned and Deliberate Murder
Section 231(2): Planned and Deliberate Murder

Basic rule: First degree murder which is planned and deliberate requires more than intention to kill.
In addition, the Crown must establish that the murder was:
(1) Was “considered, not impulsive” (R. v. More [1963]) ie. weigh pros + cons; and
(2) That there was planning and consideration beforehand (R. v. Ruptash (1982))
Banwait (2011) defines “Planned + deliberate:” Implementation/ result of a scheme or plan that has been
previously formulated or designed. The time between the moment one made the plan and its execution is
not determinative in the consideration of the notions of "planning" and "deliberation” (R v Bujold)
R. v. Smith (1980) (hunting-trip-argument-results-in-shots-fired)

THERE MUST BE SOME EVIDENCE THAT THE KILLING WAS THE RESULT/IMPLEMENTATION OF A SCHEME OR
DESIGN PREVIOUSLY FORMULATED BY THE ACCUSED. S + S go on a hunting trip together. They stop at an
abandoned farmhouse and a heated argument begins, with the result that S shoots S in the left elbow and
then in the back as he runs away, and in the head when he falls. Does this justify a conviction under S.
231(2)? Held: Not first degree. Not the slightest evidence the appellant (Smith) had given any consideration
to the murder of Skwarchuk until after he + Skwarchuk had left the house. It is obvious a murder committed
on a sudden impulse and without prior consideration, even though the intent to kill is clearly proven, would
not constitute a planned murder.
R. v. Bujold (2010) (killed-ex-gf-after-failed-reconciliation)

B + gf had been dating, but recently broke up. After various unsuccessful reconciliation attempts, B spends his
day drinking + taking cocaine. He then calls ex and goes to her house approx 1 hour later. On entering the
house, he stabs her 17 times, killing her, then unsuccessfully tries to kill himself. Held: Convicted. Clearly
planned + deliberate bc B wrote letters beforehand of intention to murder, and walked over, ensuring that he
was alone. These elements were sufficient for the jury to find that he was no longer acting impulsively but
that he was taking the necessary steps to execute his plan, which required a certain amount of reflection.
R v Droste (No. 2) [1984] (transferred-intent)

CAN BE GUILTY OF FIRST DEGREE MURDER EVEN IF YOU KILL SOMEONE OTHER THAN THE INTENDED
VICTIM. Appellant had planned to kill his wife but in carrying out his plan killed his two young children
instead. Can you be guilty of first degree murder (S 231(2)) if you end up killing someone different from the
person who was the subject of the plan? Held: Yes; the identity and character of any victim is irrelevant.
Policy rationale: This added culpability relates to planning and deliberation with regard to the taking of a
human life and not with regard to the identity of the victim. Murder is in the first degree when “it” is planned
+ deliberate. An intent to murder one person is sufficient mens rea if, by accident, the accused kills another.
Murder of a Police Officer
Section 231(4): Killing police officers and other officials in the course of their duties
The section is silent as to whether the accused must know (or be reckless to the fact) that the victim
is a police officer (or some other official). BUT see R v Munro:

41
R. v. Munro (1983)
THE CROWN MUST PROVE THAT THE ACCUSED EITHER KNEW (OR WAS RECKLESS TO) THE FACT THAT THE
VICTIM WAS A POLICE OFFICER. The normal CL presumptions apply to S 231(4). The Court stated that some
degree of subjective fault (in addition to the mens rea requirements of S 229(1)) were needed to justify the
additional penalties / stigma attached to a conviction under S 231(4). It is not necessary for the accused to
know for certain that the victim is a police officer  Enough to show some subjective advertence to the risk
(ie. the possibility that the person is an undercover police officer).
The phrase “on duty” has been interpreted in a “purposive manner” to apply to a whole tour of duty,
including breaks. R. v. Prevost (1988)
Officer is still acting within the scope of their duties even though they may have been using excessive force
at the time they were killed. R. v. Boucher (2006) *unless force is SO excessive that self-defense can be used
R v Collins (1989) (killed-police-officer-argued-unconstitutional-provision)

S 231(4) DOES NOT CONTRAVENE S. 7 OF CHARTER. The accused was charged with first-degree murder for
killing a police officer. At the time he was killed, officer was on duty + in uniform. He was shot by the accused
at close range. Accused argued that it was unconstitutional + infringed s 7 to be able to convince of first-
degree murder w/o proving planning + deliberation. The onus is on the Crown to prove that the appellant
knew that the victim was a police officer who was acting in the course of his duty. A heavier sentence can be
justified on the basis of added moral culpability or as additional deterrent on the grounds of public policy.
Murder While Committing
Section 231(5): When the death is caused by that person while committing or attempting to commit an
offence (under one of the referenced sections)
R v Russell (2001)
VICTIM OF THE MURDER + VICTIM OF THE ENUMERATED OFFENCE DO NOT HAVE TO BE THE SAME. The
events took place at the home of S with whom R was romantically involved. R threatened her with a knife,
allegedly sexually assaulted her + tied her up in the bedroom. He then left S and went to the basement where,
a few mins later, he stabbed S’s tenant to death. What is meant by the phrase “while committing?” S. 231(5)
does not state that victim of the murder + victim of the enumerated offence must be the same. Requires only
that the accused have killed while committing or attempting to commit one of the enumerated offences.
INFANTICIDE (NOT EXAMINABLE but potential policy-moral blameworthiness question)
Section 233: A female person commits infanticide when by a wilful act or omission she causes the death of
her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving
birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her
mind is then disturbed.
Section 237: Every female person who commits infanticide is guilty of an indictable offence and liable to
imprisonment for a term not exceeding five years.
R v L.B. (2011) (smothered-her-infants)

INFANTICE IS BOTH STAND ALONE INDICTABLE OFFENCE + PARTIAL DEFENCE TO MURDER. LB was charged
with 2 counts of first-degree murder. She admitted to killing by smothering 2 of her infants to a psychiatrist.

42
Policy Issues: If infanticide provides a partial defence to murder, the mother will escape a murder conviction
if the homicide falls within the purview of infanticide even though the Crown may prove all the essential
elements of the crime of murder. If, however, infanticide operates only as a potential included offence on a
murder charge, and if the Crown proves the essential elements of murder, the mother must be convicted of
murder even though the homicide falls within the meaning of infanticide. (Life imprisonment vs. 5 years).
Mens Rea: Infanticide as a form of culpable homicide, should require the mens rea required for manslaughter
Application (R v LB, 2011)

1. The jury should first decide whether the Crown has proved beyond a reasonable doubt that the
accused caused the child's death.
2. If the Crown proves causation, the jury next decides whether the Crown has proved beyond a
reasonable doubt that in causing the child’s death the accused committed culpable homicide under
S. 229. (culpable act is usually an assault).
3. If the Crown proves that the accused committed a culpable homicide, the jury must then decide the
nature of the culpable homicide. The jury should be told to consider infanticide first. If the Crown
fails to negate at least one of the elements of infanticide beyond a reasonable doubt, the jury should
be instructed to return a verdict of not guilty of murder, but guilty of infanticide.
4. If the Crown does negate infanticide, the jury should be told to go on and consider whether the
Crown has proved murder. If the Crown proves murder, then the jury should be instructed to
determine whether the murder is first or second degree murder.
5. If the Crown fails to prove murder, the jury should be instructed to return a verdict of not guilty of
murder, but guilty of manslaughter.
R. v. LB (2011): Arguments from LEAF (Women’s Legal Education Action Fund) intervener factum
“[Y]oung, socially isolated and otherwise marginalized women, who commit the offence often in
desperate and tragic circumstances, should have access to the reduced culpability offence of
infanticide that carries a maximum sentence of 5 years (as opposed to life imprisonment for murder)
… [O]ffence of infanticide recognizes the overlapping social, economic, psychological, medical and
other effects of childbirth and lactation in the commission of the crime and, accordingly, that
infanticide continues to play an important role as a reduced-culpability homicide offence that is
separate and distinct from murder.”
PARTICIPATION
Gives rise to five categories / modes of participation:
(1) Actual commission
(2) Aiding
(3) Abetting
(4) Common intention
(5) Counselling
PARTIES TO OFFENCE
Section 21(1) Everyone is a party to an offence who

(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.

43
Basic operation of Section 21(1): Places the aider or abettor on the same “legal footing” as the principal.
Each of the participating parties will be convicted of the offence (R. v. Thatcher [1987]). Not necessary for the
Crown to establish/specify which person was the principal or the aider/abettor when both are known – as
both the principal and the aider/abettor will be guilty of the same offence (Thatcher; Pickton; Briscoe).
R v Thatcher (1987) (unsure-whether-participated-in-or-directly-killed-wife)

UNANIMITY IS NOT REQUIRED AS TO MODE OF PARTICIPATION. T was charged with causing the unlawful
killing of his ex-wife. At trial, some evidence pointed towards him having been the principal perpetrator while
other evidence suggested he had arranged the killing + was in another city at the time. Does the verdict have
to be unanimous with respect to the mode of participation? Held: No; provided that each juror was satisfied
beyond a reasonable doubt that either T personally killed his ex-wife OR that he aided and abetted a 3rd
party to kill his wife, unanimity is not required as to which of these modes of participation Thatcher actually
engaged in. Otherwise may lead to risk of acquittal even though he is clearly guilty.
R. v. Pickton [2010]
Many women missing from the DT east side (all sex workers); later found dismembered remains on Pickton’s
property. Question of Pickton’s involvement of 6 counts of 2nd degree murder as actual shooter or aiding/
abetting shooter (issue is jury instruction). Held: Should convict if they were satisfied beyond a reasonable
doubt either that Pickton shot the victims or that he actively participated in their killings.
Policy Question: Why do we hold accomplices / parties to offences accountable?

o It is a general principle of criminal law that individuals are not responsible for the actions of others,
and should not be held liable for acts or outcomes they did not intend.
(1) Derivative Theory

Liability of the accomplice derives from the offence committed by the principal. By identifying themselves
with the principal’s efforts (to commit the offence), the accomplice has linked themselves to the actions of
the principal/ authorized the principal to commit the offence on behalf of both of them. By encouraging or
assisting the principal, the accomplice effectively generates their own liability.
Advantages of this theory:

(i) Provides an intuitive justification for why the accomplice + principal are convicted of the
same offence (and can receive the same punishment). SAME HARM RESULTS**
(ii) Theory explicitly recognises that where people act together to commit a crime, it may end
up being a matter of chance as to who actually “does the deed.”
(iii) Limits the liability of accomplices to situations where the victim has actually been harmed /
an offence has been committed.
Critics of this theory:

(1) Critics of the theory argue that it doesn’t actually provide a reasoned basis for deviating
from the general rule that people are not responsible for the actions of others.
(2) Theory doesn’t really tell us how much association is required.
(3) Theory doesn’t really tell us how much participation is required.
(4) Theory doesn’t tell us what to do when the principal does something outside of what is
expected by the accomplice.
(5) Theory can produce “harsh results”
 Some would argue foreseeability is required for conviction  If this were the case,
then recklessness would be sufficient mens rea for murder

44
(2) Causation theory

Liability of the accomplice derives from the fact that they can be said to have causally contributed to the
harm to the victim.
Main objection to this theory is that it in effect removes the distinction between principals + accomplices
altogether. Theory treats both as causes of the eventual harm, with the result that both are in effect
principals. Ignores the fact that they may be responsible for different types of harm and as a result, do not
necessarily deserve the same level of criminal liability and punishment.
Example Argument by Tatjana Hörnle: Argues that while individuals who collect (or distribute) child
pornography are clearly acting wrongfully (in helping to fuel the market for the pornography, the wrong is
not the same as that committed by those who create the pornography (and abuse children in the process).
In defence: It properly recognizes that both the principal and the accomplice have contributed to the harm,
but provides a basis for treating their actions as different types of wrongs.
(i) Aiding under Section 21(1)(b):

(a) The accused person actively rendered assistance to the person who actually committed the
offence [Actus reus]
(b) Intended to provide such assistance [Mens rea]
(ii) Abetting under Section 21(1)(c):
Crown must prove:
(a) The accused person actively encouraged the person who actually committed the offence
[Actus reus]
(b) Intended to provide such encouragement [Mens rea]
Actus Reus
According to the Supreme Court in R. v. Briscoe [2010]: In order to make out the actus reus of aiding or
abetting, the Crown must prove that the accused did (or, in some circumstances, omitted to do) something
that assisted (aiding) or encouraged (abetting) the perpetrator to commit the offence. Does not have to
desire the consequences, but rather intention is important (Briscoe). Note that mere presence/passive
acquiescence will not be usually be sufficient for the purposes of Section 21(1).
"To aid under S. 21(1)(b) means to assist or help the actor… To abet within the meaning of s. 21(1)(c)
includes encouraging, instigating, promoting or procuring the crime to be committed." (R v Briscoe, 2010)
o Abet may also include intentional encouragement (R. v. Wobbes (2008); R. v. Hennessey (2010))
The accused must do more than passively observe an offence in order to be convicted on the basis of aiding
or abetting. (Dunlop & Sylvester; R v Williams)
R v Greyeyes [1997 SCC] (helped-facilitate-drug-deal-guilty-of-trafficking)

An undercover police officer asked G if he knew where he could get some cocaine. G directed the officer to an
apartment building, facilitated entry + negotiated the purchase, accepting money for facilitation of the trade-
off. Is someone who assists the purchaser of drugs guilty of aiding/abetting drug trafficking? Held: Yes; one
who acts as agent for a purchaser or assists a purchaser to buy narcotics can be found guilty of trafficking
under s. 21(1) of the Code by aiding or abetting. In this case, both. Notwithstanding that G’s motivation was
to assist the officer, he intended to facilitate the sale of narcotics and is therefore guilty as a party pursuant
to s. 21(1)(b) + (c).
Dunlop & Sylvester v. R. [1979] (brought-beer-to-gang-rape)

45
MERE PRESENCE AT THE SCENE OF A CRIME IS NOT SUFFICIENT TO GROUND CULPABILITY. D + S were
charged with rape. Evidence indicated that V – a 16-year-old girl – was subject to "gang rape" by 18 members
of a motorcycle club. D + S admitted to bringing beer to the site of the rape (and saw 2 gang members have
intercourse with the victim), but claimed that they did not take part in the rape. Held: Not guilty. Something
more is required besides mere presence. If there is no evidence of encouragement by him, a man's presence
at the scene of the crime will not suffice to render him liable as aider and abettor.
R. v. Williams (1998) (passenger-border-drug-seizure-not-guilty)

MERE PASSIVE ACQUIESCENCE IS NOT SUFFICIENT. Accused was a passenger in a car that was driven by S.
Car was searched at the border by Canada Customs officers and found to contain 7 bags of cocaine. Accursed
was convicted of importing a narcotic. Held: Not guilty. Even if the accused knew of the presence of the
drugs, "mere passive acquiescence" to their transportation could not be sufficient to justify a conviction of
importing a narcotic. Must prove that the accused actually provided some assistance or encouragement.
EXCEPTION: If the accused is under a legal duty to act and fails to do so, if the the failure to act is
accompanied by the intent to provide assistance or encouragement to the person(s) actually committing an
offence, the accused will become a party to that offence as an aider and/or abettor.
o Ie. A parent is under a duty to provide the necessaries of life to their child (section 215), and this
duty includes protecting the child from harm (including partner abuse).
R. v. Dooley (2009) (abused-by-parents-they-blamed-eachother)
CAN BECOME A PARTY TO AN OFFENCE IF UNDER LEGAL DUTY TO ACT/ PREVENT HARM. V, a seven-year-
old boy, was being abused by his father + stepmother. Died of severe head injury (possibly a result of acts of
step-mother). Both blamed each other for the injury, + both were charged + convicted of 2nd-degree murder.
A parent who does nothing to protect a vulnerable child from physical abuse can be a party to murder if he or
she foresaw the likelihood of the child's death as a consequence of the abuse. When the harm is reasonably
foreseeable, the failure to take reasonable steps to protect the child may be viewed as a form of aid to the
other parent to harm the child.
Nixon [1990] (police-failure-to-act-prisoners-in-his-care)

N was a police officer in charge of the lockup. He was convicted as a party to aggravated assault of a
prisoner who had given a false name. The failure to act in accordance with a duty to protect prisoners under
his care rendered him a party because his purpose was to facilitate the commission of an offence.
Mens Rea
Crown must prove two elements to the mens rea for aiding + abetting:
(i) Accused must intend to assist / provide encouragement to the principal offender; and
(ii) Accused must have knowledge of the type (if not necessarily the exact nature) of offence
“Purpose is synonymous with intent and does not include recklessness” (R. v. Roach (2004)). Not required
that the accused desired that the offence be successfully committed (R v Briscoe)
[In order to have the intention to assist in the commission of an offence, the aider must know that the
perpetrator intends to commit the crime, although he or she need not know precisely how it will be
committed. Wilful blindness may substitute for actual knowledge] (R. v. Briscoe [2010])

46
Policy Issue: Basic justification for requiring intention is that if we don’t, there is a danger that many innocent
individuals (especially service providers) will find themselves guilty of aiding and abetting crimes. (ie. people
who sell guns).
R. v. Chan (2003) (believed-trafficking-in-heroin-was-small-amount)

CAN BE CONVICTED OF AIDING/ABETTING EVEN IN THE COMMISSION OF AN IMPOSSIBLE CRIME. C took
part in the purchase of what he believed to be a large quantity of heroin. In fact, the drugs had already been
intercepted (and substantially “diluted”) by the police, so that by the time of the purchase they only contained
a very small amount of heroin. Convicted of drug possession. Held: Mens rea was satisfied (Accused believed
he was dealing heroin).
COMMON INTENTION
Section 21(2) Where two or more persons form an intention in common to carry out an unlawful purpose
and to assist each other therein and any one of them, in carrying out the common purpose, commits an
offence, each of them who knew or ought to have known that the commission of the offence would be a
probable consequence of carrying out the common purpose is a party to that offence.
A person who forms a common unlawful intent (Ie. to commit a robbery) will be a party to other offences
that he or she knew or ought to know would probably occur (ie. forcible confinement or manslaughter).
Section 21(2) usually only applies where the principal has committed crimes that go beyond what the
accomplice intended to aid / abet. (R. v. Simpson (1988))
Actus Reus
Crown must prove:
(i) The accomplice formed a common intention (with the principal) to assist in carrying out an
unlawful purpose; and
(ii) The subsequent offence committed was one the accused either knew or ought to have
known would be a probable consequence of carrying out the common purpose.
Note: An unlawful purpose means a purpose contrary to the Criminal Code.
For the purposes of Section 21(2), the relevant offence is not confined to that offence for which the principal
is convicted  can encompasses any included offence. Ie. A party to an unlawful purpose can be convicted
of manslaughter (even though the principal is convicted of murder) if they only had objective foresight of
bodily harm (as opposed to subjective foresight of death). R. v. Jackson [1993]
R. v. Jackson [1993] (joint-killing-of-employer)

ACCUSED DOES NOT HAVE TO FORESEE THE ACTUAL OFFENCE FOR WHICH THE PRINCIPAL IS ULTIMATELY
CONVICTED. J + D were charged with 1st degree murder following the killing of J's employer. On the night of
the murder, D drove J to the victim's antique shop. According to J, D never left the car + was unaware of what
happened in the shop. J admitted to entering the shop, losing control and striking the victim with a hammer.
According to D, J talked on the way to the shop about killing the victim, but D took this to be a joke. J got out
of the car carrying a hammer and ordered D to follow him. J entered the shop; D remained outside near the
door where he heard loud voices + violent noises. D became frightened, ran down the driveway toward the
car. J ran after him, hit him + forced him to return to the shop to retrieve the cash box. Crown's theory was
that J + D both entered the shop + both participated fully in the attacks + robbery. Provided that D foresaw
the possibility of murder or risk of harm, then he could be held liable for homicide by virtue of a common
intention because murder + manslaughter are included offences – both are forms of homicide.

47
Note that what is required for the actus reus is formation of common intent to assist – and so it is not
necessary for the accomplice to provide an actual act of assistance. What is being criminalized here is their
common purpose and actual participation in the activities of the principal (similar to conspiracy).
Common Intention and Abandonment
General rule: The accomplice will not be held liable for the actions of the principal if they have abandoned
the common intention prior to the commission of the offence.
Policy Reasons for Recognizing the Abandonment Defence (R. v. Gauthier [2013]):
1. Need to ensure that only morally culpable persons are punished;
2. There is benefit to society in encouraging individuals involved in criminal activities to withdraw from
those activities + report them
For the defence of abandonment, the accused must prove:

1. That he or she communicated the intent to abandon the common intention to the person involved;
2. That he or she communicated in a timely and unequivocal manner;
3. That he or she took reasonable steps in the circumstances either to neutralize or cancel out the
effects of their participation or to prevent the commission of the offence (proportionality analysis)
 Step 3 added after R v Gauthier
R. v. Kirkness [1990] (accomplice-raped-old-lady-during-robbery)

K + S broke into a house. S stole various items + blocked the front door while K sexually assaulted an elderly
victim. S then killed the victim. K stated that he protested S’s homicidal actions. Cory J.: K had formed an
intention in common with S to commit the crime of B&E. He was aware of the sexual assault, but “there is
no indication that he knew that death or bodily harm might result.” The pathology suggested that the victim
died of suffocation, which occurred after the sexual assault. K did not aid or abet S in the strangulation or
suffocation. K could only be guilty of manslaughter if he was a party to the sexual assault. The only step he
took relevant to the sexual assault was to place the chair against the front door. K removed himself from the
joint enterprise when he told S to stop strangling the victim.
R. v. Gauthier [2013] (planned-poisoning-of-children-double-suicide)

G + husband planned to murder their children + commit suicide. G supplied pills to her husband, then
indicated that she did not think they should proceed. G argued abandonment. Was there an air of reality to
the defence of abandonment? Court added a new requirement for the defence of abandonment, such that
the accused now has to demonstrate that they took reasonable steps in the circumstances either to
neutralize or otherwise cancel out the effects of their participation or to prevent commission of the offence.
Criteria to establish an "air of reality" to the defence:

1. There was an intention to abandon or withdraw from the unlawful purpose;
2. There was timely communication of this abandonment or withdrawal from the other person
3. The communication served unequivocal notice upon those who wished to continue; and
4. The accused took, in a manner proportional to his or her participation in the commission of the
planned offence, reasonable steps in the circumstances either to neutralize or otherwise cancel out
the effects of his or her participation or to prevent the commission of the offence.
Court in Gauthier also noted that it will be harder to establish the defence of abandonment where the
accused is charged with being a party to an offence on the basis of Section 21(1) b/c aiders + abettors have
generally already performed acts to aid/abet the principal offender in commission of an offence. Thus,

48
merely communicating in unequivocal terms their intention to cease participating in the commission of the
offence will not be enough "to break the chain of causation and responsibility.”
R. v. Logan [1990] (robbed-store-wounded-cashier)

A PARTY TO AN OFFENCE CANNOT BE FOUND GUILTY OF THE OFFENCE BASED ON A LESSER STANDARD OF
MENS REA THAN REQUIRED FOR CONVICTING THE PRINCIPAL. A were charged with robbery of a store and
wounding a cashier. Two were convicted of attempted murder, argued no intention to shoot (neither had
done the shooting). If principles of fundamental justice require subjective mens rea to convict a principal, the
same minimum degree of mens rea is constitutionally required to convict a party of that offence. For such
offence, A can be convicted if s/he knew that the commission of the offence was a probable consequence of
carrying out the common purpose.
PERSON COUNSELLING OFFENCE
Counselling (a crime that is completed): Note that there are two forms of counselling:
. (i) Counselling a crime that is completed (Section 22)
Treated as a form of participation
Punished as if had committed the complete offence.
. (ii) Counselling a crime that is not completed (Section 464)
Treated as a form of inchoate liability (incitement)
Punished as an attempt (as per Section 463)
Section 22 (1) Where a person counsels another person to be a party to an offence and that other person is
afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that
the offence was committed in a way different from that which was counselled.
Idem
Section 22(2) Every one who counsels another person to be a party to an offence is a party to every offence
that the other commits in consequence of the counselling that the person who counselled knew or ought to
have known was likely to be committed in consequence of the counselling.
Section 22(3) For the purposes of this Act, counsel includes procure, solicit or incite.
Basic elements of the offence of counselling were set out in R. v. Hamilton (2005 SCC). McLachlin C.J.: “Actus
reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal
offence. And the mens rea consists in nothing less than an accompanying intent or conscious disregard of the
substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either
intended that the offence counselled be committed, or knowingly counselled the commission of the offence
while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of
the accused's conduct.”
Actus Reus
To establish actus reus, Crown must prove:
1. The accused encouraged or actively induced the commission of a criminal offence.
2. Accused knew – or ought to have known – that the offence was likely to be committed as a result of
the counselling.
Subjective knowledge is the test in cases of murder or attempted murder as a result of the operation of
Sections 7 + 11(d) of the Charter (Martineau (1990))
The crime does not have to be committed in the way it was counselled, or even be the same crime as was
counselled. However: The crime must be one that was reasonably foreseeable from the counselling.

49
As per S 22(3), the word counselling has been interpreted to include “procure, solicit or incite.” Also has been
interpreted to include advising or recommending that someone else commit an offence, including:
• Finding someone to commit an offence;
• Persistently asking someone to commit an offence: and
• Provoking or instigating someone to commit an offence.
R. v. O’Brien (2007) (counselled-to-rob-store)

WHERE A (SUPPORTIVE) CONVERSATION BEFORE AN OFFENCE ACTIVELY INDUCES THE COMMISSION OF IT,
THE ACCUSED CAN BE GUILTY OF COUNSELLING. Accused sold drugs to R, then suggested that it would be
easy for R to rob a local store as the only person working there was a 16-year-old girl. Accused also suggested
that R should paint her face before the robbery. Accused was arrested and convicted of counselling R to
commit robbery. Held: Accused was guilty of counselling. R indicated that she had not decided to rob the
store before her conversation with the accused.
Mens Rea
To establish mens rea, Crown must prove:
1. The accused intended for the offences to actually be committed by the person counselled; or
2. Extreme recklessness with respect to the possibility that the offences might actually be committed
by the person counselled.
Key point to remember on mens rea:Consists of intent or conscious disregard of the substantial and
unjustified risk inherent in the counselling R. v. Hamilton (2005). Note that the wording “extreme
recklessness” is the term used by commentators to describe the degree of recklessness required.
ACCESSORY AFTER THE FACT
Section 23(1) An accessory after the fact to an offence is one who, knowing that a person has been a party to
the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.
Where one party cannot be convicted

Section 23.1 For greater certainty, sections 21 to 23 apply in respect of an accused notwithstanding the fact
that the person whom the accused aids or abets, counsels or procures or receives, comforts or assists cannot
be convicted of the offence.
Under the Code, an accessory after the fact is not a party to an offence (as is the case in many other forms of
participation). Instead: S 23 creates a new substantive, free-standing offence – being an accessory after the
fact – which is not contingent on the conviction of the other party.
R. v. S(F.J.) (1997 SCC) (Convicted-for-helping-bro-even-though-bro-acquitted)

ACCORDING TO S. 23.1, A PERSON CAN BE CONVICTED OF BEING AN ACCESSORY AFTER THE FACT EVEN IF
THE PERSON ASSISTED IS NOT CONVICTED OF AN OFFENCE. SCC upheld the conviction of an accused for
being an accessory after the fact – for assisting her brother by transporting him from a killing & orchestrating
a false alibi even though her brother was eventually acquitted of the murder.
Actus Reus: In order to establish the actus reus, the Crown must prove that the accused received, comforted,
or assisted a person who has committed a crime.
Note: Mere failure to inform authorities about the whereabouts of a fugitive is not enough (R. v. Dumont)

50
Section 23(2) – which provided that a married person could not be held liable for assisting his or her spouse
after the commission of a crime – was repealed in 2000.
Mens Rea: In order to establish mens rea, Crown must prove:

1. Subjective knowledge that the person assisted has been a party to an offence; and
 Subjective knowledge in this context includes willful blindness
 Accused must have knowledge of the specific offence committed. Knowledge that a
general crime may have been committed is not sufficient (R. v. Duong, 1998)
2. Assisting the fugitive for the purpose of assisting him or her to escape.
• The acts of assistance do not have to have actually helped the person escape
(R. v. McVay (1982))
 Assisting has been interpreted to require that the accused act with the purpose of
assisting a known criminal to escape. (intent requirement – more than mere
knowledge or recklessness)  higher form of subjective mens rea
R. v. Duong (1998) (harboured-fugitive-without-asking-about-crime)

SUBJECTIVE KNOWLEDGE INCLUDES WILLFUL BLINDNESS. 2 individuals were killed by L. The deaths – and
identity of the alleged killer – were reported on TV. Despite seeing the broadcasts, D allowed L stay with him
afterwards. D later maintained that as he did not want to know about L’s involvement in the crime, he never
asked him about it. Is willful blindness sufficient for the purposes of Section 23(1)? Is it enough to simply
prove some unlawful act? Where the Crown proves the existence of a fact in issue and knowledge of that
fact is a component of the mens rea, then willful blindness as to the existence of that fact is sufficient.
INCHOATE OFFENCES
Basic Rule: A person can be held criminally liable for a crime even if the crime is not completed, provide that
there is proof of some prohibited act and accompanying mens rea.
Three main types of inchoate offences:

(1) Attempts
(2) Incitement / Counselling
(3) Conspiracy
Two key issues for inchoate offences:

(1) At what point should we criminalize an attempt? At what point does the desire to commit a crime – and
actual efforts to undertake a criminal act – constitute an attempt that warrants sanction &punishment?
(2) How should the criminal law distinguish between successful and unsuccessful attempts?
Other key (policy) questions:

(1) If one of the central aims of the criminal law is to acknowledge harms and punish wrongs, how do we
justify criminalizing inchoate offences? How do we justify punishing people for incomplete crimes?
(2) Can we justify punishing an attempt where there is no accompanying harm?
Attempts
Section 24(1) Every one who, having an intent to commit an offence, does or omits to do anything for the
purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was
possible under the circumstances to commit the offence.

51
Question of law
Section 24(2) The question whether an act or omission by a person who has an intent to commit an offence is
or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the
offence, is a question of law.
Actus Reus
Basic Rule: The actus reus of attempt is an act or omission that goes beyond merely preparation to commit
the complete offence (R v Root, 2008)  can lead to remoteness issue*
There is no universal test that can be used to establish the actus reus requirements for all criminal attempts.
These actus reus requirements will vary according to the nature of the crime attempted & the circumstances
of the individual case. In any given case, it will be the responsibility of the trial judge to determine whether
the actus reus of the attempt has been satisfied.
R v Cline (1956) (attempted-indecent-assault-with-young-boy)

THERE MUST BE AN ACT/OMISSION THAT IS MORE THAN MERE PREPARATION TO COMMIT A CRIME.
Accused approached C (a young boy) & asked him to help carry his suitcases, saying he would give the boy “a
couple dollars.” Accused did not actually have any suitcases with him. C refused. Evidence that accused had
done this on multiple occasions previously. Accused was charged with indecent assault. Substituted with
attempted indecent assault. Following preparation, the accused must then take a next step (accompanied by
intention to commit the crime) that is sufficient in law to establish a criminal attempt.
R. v. Deutsch (1986) (job-interview-sex-expected)

THE DISTINCTION BETWEEN PREPARATION AND ATTEMPT IS QUALITATIVE + DEPENDENT ON THE RELATIVE
PROXIMITY OF THE ACT. D placed newspaper ads for a secretary/sales assistant, + conducted interviews with
3 applicants and undercover police officer. D indicated that they would be expected to have sex with clients or
potential clients if necessary to conclude a K and told them salary could be $100K. Did not make offer of
employment but told them to let him know if interested. D was acquitted of attempts to procure but on
appeal, issue was whether acts or statements could, as matter of law, constitute an attempt to procure
rather than mere preparation. Although actual crime could not be committed until one of the women
actually had sex with someone; offering financial rewards was a step in attempting to make this action occur.
Sufficient Actus Reus:

R v James (1971): Accused caught going through the glove compartment of a car looking for car keys (with
intent to steal the car). Sufficient actus reus for attempted theft.
R. v. Boudreau (2005): Accused pointed a loaded gun at his ex-wife after chasing her to a neighbour’s house
+ yelling that he was going to shoot. Is this sufficient to constitute the actus reus for attempted murder?
R. v. Tosti [1997]: Accused apprehended inspecting the lock of the barn he intended to burgle, while carrying
concealed cutting equipment. Sufficient to constitute the actus reus for attempted burgulary.
R. v. Litholetovs [2002]: Accused purchased petrol from a garage, took it to the complainant’s home, and
then doused the front door. Sufficient to constitute the actus reus for attempted arson
Insufficient actus reus for attempted theft: R. v. Lobreau (1988): Accused made a plasticine impression of a
car key, with the intent to steal the car.
Section 24(2) does not create a free-standing defence of abandonment. However: Canadian courts have
recognised that evidence of abandonment may lead to “a reasonable doubt about whether the accused had
the intent to commit the crime in the first place.” Courts treat abandonment as a repudiation of the the
mens rea for attempt (and not as a separate defence). R. v. Sorell (1978)

52
Has there been a preparatory act?
YES
Have the preparatory acts been completed?
YES
Has the accused taken the next step towards completion of the offence?
If YES, then the actus reus for the attempt has been made out
Mens Rea
The mens rea, or fault element, is the most important element of attempted crimes because the actus reus
will, by definition, not include the completed crime. R v Cline
R v Ancio SCC held that for an attempt, the Crown must prove that the accused had the specific intent to
commit the completed offence, even if the completed requires a lesser intent R. v. Colburne (1991). In the
context of murder, for ex, this would mean that the accused must have had an intent to kill. R v Ancio (1984)
R v Logan [1990]: SCC held that the constitutional minimum mens rea for attempted murder is subjective
foresight of the consequences (death) because of the stigma attached to a conviction for attempted murder.
Canada does not hold people liable for attempts in cases of recklessness or wilful blindness. Attempts will
often require proof of a higher (more serious) form of mens rea that in required for the completed crime. Can
argue, for example, that that the mens rea for attempted sexual assault is the (subjective) intent to engage in
non-consensual sexual activity, despite the fact that it is is possible to be convicted of the completed offence
of sexual assault on the basis of recklessness, wilful blindness, or a failure to "take reasonable steps in the
circumstances known to the accused at the time, to ascertain that the complainant was consenting."
R v Ancio [1984 SCC] (brought-shotgun-to-talk-to-ex)

A CONVICTION FOR ATTEMPTED MURDER REQUIRES PROOF OF SPECIFIC INTENT TO KILL – NO LESSER
FORM OF MENS REA WILL SUFFICE. A, who wanted to speak with his Ex-wife, broke into an apartment
building with a loaded shotgun. K, the man with whom his wife had been living, went to investigate the sound
of breaking glass + threw the chair he was carrying at A when he saw him climbing the stairs. The gun
discharged, missing K, & a struggle followed. Shortly after his arrest, respondent stated to police that he "had
him by the throat and would have killed him." Is the mens rea in attempted murder limited to an intention
to cause death or to cause bodily harm knowing it to be likely to cause death? The completed offence of
murder involves killing and any intention to complete that offence must include the intention to kill. An
attempt to murder should have no lesser intent esp as mens rea may be the sole criminal element.
R. v. Williams (2003) (HIV-unprotected-sex)

W (who was HIV +) was convicted of attempted aggravated assault for having unprotected sex. Accused was
convicted of attempted aggravated assault b/c there was a reasonable doubt as to whether his partner was
already HIV + at the time they had sex. Found intention to commit crime.
Counselling – Crime Not Completed

Two forms of counselling:
(1) Counselling a crime that is completed (Section 22)
• Treated as a form of participation
• Requires objective fault
• Punished as if had committed the complete offence.
(2) Counselling a crime that is not completed (Section 464)

53
• Treated as a form of inchoate liability (incitement)

• Requires subjective fault
• Punished as an attempt (as per Section 463)
Section 464 Except where otherwise expressly provided by law, the following provisions apply in respect of
persons who counsel other persons to commit offences, namely,
(a) every one who counsels another person to commit an indictable offence is, if the offence is not
committed, guilty of an indictable offence and liable to the same punishment to which a person who
attempts to commit that offence is liable; and
(b) every one who counsels another person to commit an offence punishable on summary conviction
is, if the offence is not committed, guilty of an offence punishable on summary conviction.
Section 464 also sometimes referred to as Incitement*
To establish actus reus, Crown must prove:

(i) The accused encouraged or actively induced the commission of a criminal offence. (Sharpe)
For the purposes of the actus reus, it is not enough for the person to merely describe the offence. Instead:
They must actively induce or advocate for the commission of the offence.
Section 464 in effect borrows / imports the meaning of counselling from Section 22(3) – includes “procure,
solicit or incite.” Does not matter if the person counselled never has any intention of carrying out the crime –
see R. v. Glubisz (No. 2) (1979)
To establish mens rea, Crown must prove:

(i) The accused intended for the offences to actually be committed by the person counselled; or
(ii) Extreme recklessness with respect to the possibility that the offences might actually be committed by the
person counselled.
Subjective Intent: Imputed based on evidence

Objective Intent: Imputed based on reasonable person
Key points to remember on mens rea: Consists of intent or conscious disregard of the substantial and
unjustified risk inherent in the counselling. R v Hamilton (2005)
• “Mere” recklessness is not sufficient, as it would mean that a person would be liable for casual
comments about the possibility of a crime being committed
R v Hamilton (2005 SCC) (counseled-various-crimes-thru-email)

EXTREME RECKLESSNESS (CONSCIOUS DISREGARD OF SUBSTANTIAL + UNJUSTIFIED RISK INHERENT IN
COUNSELING) CAN SATISFY MENS REA FOR COUNSELLING. H sent email saying he had confidential info. Files
had instructions on how to set bombs + break into houses. Included program to generate credit card #s.
Charged with counseling of a crime under s. 464(a). Is recklessness sufficient for the mens rea of
counselling? Held: Yes, if extreme (see ratio definition). Mere recklessness not sufficient.
IMPOSSIBILITY
Section 24(1):
Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of
carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under
the circumstances to commit the offence.

54
There is no impossibility defence for attempted crimes in Canada. Can be convicted of an attempt even if it
was a factual or legal impossibility. The only circumstance in which impossibility can be a defence is where
the act in question cannot form the basis of a crime – that is, where the accused attempts to commit an
imaginary crime.
Factual impossibility: Where an accused attempts to pick a pocket that contains no money – R v Scott [1964]
Legal impossibility: Attempting to receive goods believed to be stolen, but which were in law not stolen.
United States of America v. Dynar [1994] (attempted-laundering-of-fake-drug-money)

TRUTH IS NOT A RELEVANT PART OF MENS REA. WHAT IS LEGALLY RELEVANT IS D’S BELIEF OF THE CRIME.
THEREFORE, IMPOSSIBILITY IS NOT A DEFENCE FOR ATTEMPTED CRIMES. USA sought to extradite the D for
attempting to launder the proceeds of crime. It was impossible for him to launder the money b/c it had never
in fact been drug money (it was provided as part of an FBI sting). HELD: Convicted of attempt. Only relevant
distinction for purposes of s. 24(1) is between imaginary crimes + attempts to do the factually impossible. An
imaginary crime is one which, even if completed, still would not be a crime. Cannot convict these.
CONSPIRACY
Section 465(1)(c)
Establishes the general offence of conspiracy by providing that:
“[E]very one who conspires with any one to commit an indictable offence is guilty of an indictable
offence and liable to the same punishment as that to which an accused who is guilty of that offence
would, on conviction, be liable."
The offence is established because Section 465 provides for the punishment (rather than definition) of
conspiracy to commit various substantive offences.
Note that Section 465 contains a number of specific provisions establishing various forms of conspiracy,
including:
• Conspiracy to commit murder – Section 465(1)(a);
• Conspiracy to prosecute a person known to be innocent – Section 465(1)(b);
• Conspiracy with extraterritorial effects – Section 465(3);
• Conspiracy in restraint of trade – Section 465(4)
Most common in practice: cases involving organized crime and drug trafficking.
R. v. O’Brien (1954 SCC) adopted the definition of conspiracy set out in R. v. Mulcahy (1868): A conspiracy
consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful
act, or to do a lawful act by unlawful means.
Dynar (1997 SCC): Conspiracy is a more 'preliminary' crime than attempt, since the offence is considered to
be complete before any acts are taken that go beyond mere preparation to put the common design into
effect. The Crown is simply required to prove a meeting of the minds (agreement) with regard to a common
design to do something unlawful, specifically the commission of an indictable offence. Basic justification for
offence of conspiracy is the prevention of crime.
POLICY*: Conspiracy is an offence that is viewed with extreme suspicion by civil libertarians, owing to its
vague parameters. The power to charge an accused person with conspiracy is believed to place an unfair
advantage in the hands of the Crown. (Verdun-Jones)

55
Actus Reus
The actus reus of conspiracy is an agreement to carry out the completed offence. (R v Cotroni 1979). Do not
need to prove that steps were taken to implement the agreement. Provided an agreement to commit an
offence has been reached, nothing else is required on the part of the accused – AR complete (F. J. 2013)
A single person can be convicted of conspiracy even if the other co-conspirators are not (R. v. Murphy (1981)
An implied or tacit agreement to commit an offence is sufficient for conspiracy – Atlantic sugar Refineries
co. v. Canada (A.G) (1980)
Chain Conspiracies: Does not have to be direct communication between the co-conspirators (R. v. Controni
& Papalia (1979). Ie. A is in contact with B who is in contact with C (conspiracy agreement is between A + C)
Where the accused joins a pre-existing conspiracy, they can only be convicted of conspiracy if the Crown can
prove that they adopted the criminal plan as their own and consented to participate in carrying it out.
Key: Knowledge of a conspiracy does not give rise to criminal liability – Lamontagne (1999). Also cannot
conspire with a spouse, as they are treated as one person for the purpose of conspiracy – Barbeau (1996)
No liability for attempt to conspire: R. v. Déry [2006 SCC] overturned a conviction for attempted conspiracy
on the basis that it would in effect criminalize "bad thoughts of this sort that were abandoned before an
agreement was reached, or an attempt made, to act upon them."
Unilateral conspiracies (attempt to conspire but no agreement was reached) will normally be caught under
our law by the offence of 'counselling an offence not committed"’ under s 464 (R v Dery). A person who
pursues a unilateral conspiracy beyond mere preparation could be guilty of an attempt to commit the actual
crime. Person who abets (or encourages) conspirators to pursue the object of the conspiracy can be a party
to the conspiracy even though they did not actually agree to the conspiracy.
R v Dery (2006 SCC) (attempt-to-conspire-not-liable)

NO LIABILITY FOR ATTEMPT TO CONSPIRE B/C CONSPIRACY REQUIRES ACTUS REUS OF AGREEMENT. Dery
convicted of attempting to conspire to commit theft of liquor + attempting to conspire to unlawfully possess
proceeds. Can you be convicted for a fruitless discussion/contemplation of a crime never committed? No.
Mens Rea
Two key subjective elements to the mens rea for conspiracy (R v O’Brien):
(i) Intention to agree; and
(ii) Intention to put the common design into effect.
A + B enter into an agreement to kidnap C. Unknown to A, B has no intent to carry out the kidnapping. Can B
be guilty of conspiracy? No. To be convicted of conspiracy, the accused must actually intend to carry out the
agreement - R. v. O’Brien (1954)
A and B enter into an agreement to kidnap C. Unknown to A, B is an undercover police officer. A intends to
carry out the kidnapping. Can A be guilty of conspiracy? No. Need at least two parties to the agreement to
intend to carry it out (and we would presume that the officer does not have the intent) – R. v. O’Brien (1954)
R. v. Sokoloski [1977 SCC] (conspiracy-between-2-drug-dealers-and-undercover-cop)

Police placed a car driven by D (who they suspected of drug dealing) under surveillance. Police arrest D + his
companion (C), after witnessing a drug exchange. Police searched D’s premises and find drugs. During the
search the phone rang, & was answered by a police officer. The caller A mistakenly thought he was talking to

56
D, and asked the officer “Did that stuff finally came in?” The officer replied yes and then arranged a meeting
with A to deliver it to him. Held: Convicted A + D for conspiracy to drug traffic on the basis that A – the seller
of the large quantity of the drugs – must have known that the purchaser would in turn sell the drugs.
R. v. Nova Scotia Pharmaceutical Society (1992) (pharmacy-conspiracy)

A number of pharmacies were charged with conspiracy "to prevent or lessen competition" under S 32(1)(c) of
the Combines Investigation Act for the sale of prescription drugs + dispensing services. Although SCC
reaffirmed the rule that subjective intent is needed for the mens rea of conspiracy, the Court also held that
an objective fault element was sufficient in relation to the aims of the agreement: Accused would be guilty if
Crown could prove that reasonable business people in the same position would have known that the
agreement would unduly lessen competition.
Impossibility is not a defence to a charge of conspiracy. (Dynar). A + B convicted of conspiracy to launder

money even though the money was not “dirty.” Court noted that although it was impossible to carry out the
crime, there was still (1) Agreement (actus reus) + (2) Intent to agree and launder drug money (mens rea)
DEFENSES
INTOXICATION
Brief history of the common law defence of intoxication in Canada

• Canadian courts have traditionally followed the English approach, as set out in R. v. Beard (1920)
• Rules were modified in R. v. Daviault [1994 SCC] which held that there might be circumstances in
which (extreme) intoxication could operate as a complete defence for general intent offences.
• Parliament then responded to the Daviault decision by amending the Code, resulting in Section 33.1:
intoxication cannot be a defence to a general intent crime in the context of assault.
Basic rules set out in DDP. v. Beard (1920):

(1) Intoxication could be a ground for an insanity defence if it produced a disease of the mind.
 Ask whether the accused is suffering from a mental disorder as defined in Section 16.
 If Section 16 does not apply (the accused is not suffering from a disease of the mind), the Court
should then consider whether Section 33.1 applies.
R. v. Bouchard-Lebrun [2011] (assaulted-victim-after-taking-ecstasy)

INTOXICATION CAN BE A DEFENCE IF IT PREVENTED THE ACCUSED FROM FORMING THE ACTUAL SPECIFIC
INTENT FOR THE OFFENCE. BL + friend purchased + consumed ecstasy pills. Went to house of victim (L) with
intention of assaulting him. In the course of attacking L, D’s neighbor came + they brutally assaulted him too.
L suffered serious + permanent injuries. B-L was charged with 2 counts of aggravated assault. Defence:
Argued that at the time of the assault, B-L was in a psychotic, delusional state brought on by ecstasy pills. Did
the psychotic state constitute a disease of the mind for the purposes of the Code? Court used R. v. Stone
(1999): distinguishes between internal + external factors when determining whether a person’s mental state
could be said to be a disease of the mind. Concluded that B-L’s condition was caused by external factors that
were transitory, and as a result rejected the defence.
(2) Evidence of drunkenness which renders the accused incapable of forming the specific intent essential to
constitute the crime should be taken into consideration with the other facts proved in order to determine
whether or not he had this intent.
 Where the crime is one of specific intent, then intoxication can act as a defence.

57
 Intoxication can never be a defence to a crime of general intent.

 Where the accused succeeds in raising the defence of intoxication in the context of a specific intent
crime, the effect will be to reduce the charge (partial defence)
 Ask: Is the crime one of general or specific intent?
o General intent: Intent to do the prohibited act. R v George: intention as applied to acts
apart from their purposes
o Specific intent: Intent to bring about prohibited consequences. R v George: intention as
applied to acts considered in relation to their purposes
o R. v. Bernard [1988]: He who kills intending to kill or cause bodily harm is guilty of murder,
whereas he who has killed by the same act without such intent is convicted of manslaughter
R v George [1960] (intoxicated-assaulted-man-stole-money)

ONLY INTOXICATION TO THE POINT OF INSANITY WILL NEGATE MENS REA ALTOGETHER IN CASES
INVOLVING ONLY GENERAL INTENT. George tried to sell a fur to Mr. A but the man declined. Later the same
night, when he was very drunk, he came back to the house + assaulted the man, stealing $22. He was charged
with robbery. Stated that he was very drunk + did not remember much about the incident, but he did
remember hitting someone, remembered the house being the same one that he had been in earlier that day.
Should the courts substitute the offence of common assault? Does drunkenness negate mens rea? Held:
Distinguishes between crimes of general vs specific intent. Substituted charge of common assault.
R v Bernard [SCC 1988] (Raped-victim-while-intoxicated)

INTOXICATION IS NOT A DEFENSE TO CRIMES OF GENERAL INTENT, AND SEXUAL ASSAULT IS A CRIME OF
GENERAL INTENT. B raped + punched victim. Raised defence of drunkenness + said when he realized what he
was doing he “got off” her. Is sexual assault causing bodily harm an offence of general or specific intent?
Can self-induced drunkenness be used as a defence to offences of general intent? Held: Sexual assault
causing bodily harm is an offence of general intent, to which drunkenness cannot apply as a defence.
Examples of general intent crimes: Examples of specific intent crimes:

• Manslaughter • Murder
• Assault • Assault with intent to resist arrest
• Assault causing bodily harm • Touching a child for a sexual purpose
• Aggravated assault • Theft
• Sexual assault • Breaking and entering with intent to
• Pointing a firearm commit an indictable offence
• Impaired driving • Attempting to commit a criminal
• Damage to property offence
 If the defence can raise a reasonable doubt as to the accused’s capacity to form the required specific
intent, then they must be acquitted.
 While capacity and intent may be related, it is possible to envisage cases where evidence which falls
short of establishing that the accused lacked the capacity to form intent, may still leave the jury
with a reasonable doubt that, when the offence was committed, the accused in fact foresaw the
likelihood of death.” (R v Lemky (1996))
 If there is evidence of specific intent + lack of capacity, courts will follow specific intent evidence
and deny intoxication defence
 R. v. Robinson (1996): Key question when considering the second rule under Beard is whether the
Crown has satisfied [the jury] beyond a reasonable doubt that the accused had the requisite intent
 R. v. Daley (2007): Considered whether a literal interpretation of the second rule in Beard amounted
to a violation of Sections 7 and 11(d) of the Charter. Held: Yes; jury could convict an accused where

58
they had the capacity to form the specific intent (despite the intoxication), even though there was
evidence that they didn’t in fact have the intent.
(3) Evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary
to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily
gave way to some violent passion, does not rebut the presumption that a man intends the natural
consequences of his acts
 If the accused cannot prove that the intoxication prevented him or her from forming the specific
intent required, then there will be no defence (even if the intoxication prevented him or her from
controlling their actions). Lack of control not a defence if specific intent was present.
R v Daviault [1994 SCC] (raped-old-lady-no-memory-shitfaced)

IF THE ACCUSED CAN ESTABLISH ON A BALANCE OF PROBABILITIES THAT THEY WERE IN A STATE OF
EXTREME INTOXICATION AKIN TO AUTOMATISM/INSANITY, THIS IS SUFFICIENT TO RAISE A REASONABLE
DOUBT AS TO THE MENS REA FOR A GENERAL INTENT CRIME. D was charged with sexual assault of a 65-
year old woman, who was confined to a wheelchair due to partial paralysis. On the day of the assault, D
consumed 7-8 beers + 35 ounces of brandy in the evening. D claimed that he had no memory beyond drinking
the brandy, and that he could not recall any events relating to the alleged assault. At trial, a pharmacologist
testified that D had consumed enough alcohol to cause death (or coma) in an ordinary person. However, he
suggested that because D was an alcoholic, his tolerance to alcohol may have been higher. Pharmacologist
also testified that given the level of alcohol in D’s blood, he may have been in a state of dissociation at the
time of the alleged sexual assault. Held: Majority agreed that a strict application of the second Beard rule
amounted to a violation of Sections 7 + 11(d). Intoxication could be a defence to a general intent crime
where there was evidence that it was so extreme as to put the accused into a “state akin to automatism.”
The substituted mens rea of an intention to become drunk cannot establish the mens rea to commit the
assault. Also leads to voluntariness issues. *This is only available in rare cases.
Parliamentary response to Daviault: Amended the Code to add Section 33.1 – with the result that
intoxication cannot be a defence to a general intent crime in the context of assault.
33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-
induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where
the accused departed markedly from the standard of care as described in subsection (2).
(2) … A person departs markedly from the standard of reasonable care generally recognized in Canadian
society and is thereby criminally at fault where the person, while in a state of self-induced intoxication that
renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or
involuntarily interferes or threatens to interfere with the bodily integrity of another person.
Summarized in Bouchard-Lebrun (2011):

This provision applies where three conditions are met:
(1) the accused was intoxicated at the material time;
(2) the intoxication was self-induced; and
(3) the accused departed from the standard of reasonable care generally recognized in Canadian
society by interfering or threatening to interfere with the bodily integrity of another
**Where these three things are proved, it is not a defence that the accused lacked the general intent or the
voluntariness required to commit the offence.
Note: The provision does not apply to cases of involuntary intoxication leading to a state akin to automatism
or insanity – in those cases, the accused will have a complete defence.
Summary of the present law on intoxication (Verdun-Jones)

59
(1) For crimes of specific intent, the second and third Beard Rules apply and intoxication may be used as a
defence where it prevents the accused from forming the required specific intent.
(2) For crimes of general intent, where the offence involves an element of assault or any other interference
or threat of interference with the bodily integrity of a person, self-induced intoxication is not a valid defence
no matter how severe it may have been at the time (Section 33.1).
But: In all other cases - where the offence does not involve an element of assault or any other interference
with the bodily integrity of a person – if the intoxication is so extreme as to produce a state akin to
automatism or insanity, the accused will have the benefit of an absolute defence (Daviault).
Involuntary Intoxication
R v Chaulk (2007) (took-LSD-instead-of-caffeine-pill)

60
INTOXICATION IS SELF-INDUCED WHEN ONE VOLUNTARILY CONSUMES A SUBSTANCE WHICH THEY KNOW
(OR OUGHT TO KNOW) WAS AN INTOXICANT AND THE RISK OF INTOXICATION SHOULD HAVE BEEN
CONTEMPLATED. C smashed through victim’s neighbor’s (M) door in a drug-induced rampage + tried to get
to her, then smashed M’s property, threatened to kill his fam, then stripped naked. M subdued him until
police arrived. C had consumed 8 beers, a few puffs of marijuana, + taken a "wake-up pill" that he claimed to
believe was a caffeine pill, but was a much more powerful drug (probably LSD). What does "self-induced
intoxication" in S. 33.1 mean? Held: New trial ordered (see ratio).
MENTAL DISORDER
Two main defences associated with mental disorder in Canadian criminal law:
(1) Not criminally responsible on account of mental disorder (NCRMD); and
(2) Automatism
These defences apply where there is evidence that the accused suffered from some form of severe mental
impairment or incapacity.
Basic distinction between the defences:

NCRMD: Applies in situations where the accused does not have the capacity to appreciate the nature and
quality of the act or omission (or to know that it is morally wrong). (Section 16) If defence succeeds: Accused
is held to be NCRMD, and may be held in custody in a psychiatric facility / placed under community
supervision if considered to be a threat to the public.
Automatism: Applies in situations where the accused acts involuntarily as a result of some temporary
mental impairment (such as a blow to the head). Common law defence; If successful: Accused is acquitted
on the grounds that the mens rea of the offence is not made out.
Section 16
(1) No person is criminally responsible for an act committed or an omission made while suffering from a
mental disorder that rendered the person incapable of appreciating the nature and quality of the act or
omission or of knowing that it was wrong.
Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal
responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
Burden of proof
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from
criminal responsibility is on the party that raises the issue (the accused).
Both the NCRMD defence + automatism have to be established on a balance of probabilities. This constitutes
a violation of Section 11(d) of the Charter (presumption of innocence) because the accused can in principle
be convicted even if there is a reasonable doubt about guilt. However: SCC has consistently held that this
limit on the presumption of innocence is reasonable (R. v. Chaulk [1990]).
Fitness to Stand Trial

Issue arises in situations where the accused – who was sane at the time the offence was committed –
subsequently suffers from a mental disorder that would make it impossible for him or her to have a fair trial.
Definition of unfit to stand trial is set out in Section 2:

61
unfit to stand trial means unable on account of mental disorder to conduct a defence at any stage of the
proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account
of mental disorder to
(a) understand the nature or object of the proceedings,
(b) understand the possible consequences of the proceedings, or
(c) communicate with counsel; (inaptitude à subir son procès)
Key points in relation to fitness to stand trial:
(1) Accused is presumed to be fit to stand trial.
(2) Unfitness must be proved on a balance of probabilities as per Section 672.22 + 672.23
(3) The standard of fitness is a legal one. Focuses on the fairness of the trial process and the ability of
the accused to take part.
(4) Not necessary for the accused to be able to act in his or her best interests – R. v. Whittle (1994):
Held that the test for fitness to stand trial “is quite different” from the definition of mental
disorder in S 16. The idea of fitness focuses on the narrow question of whether the accused is able
to understand the process + communicate with counsel. It is not required that the accused be
“capable of exercising analytical reasoning” in accepting counsel’s advice or making a decision that
serves their interests.
(5) Accused may still be fit to stand trial even if they are not able to give testimony and do not
remember the crime.
(6) If the accused is found unfit to stand trial, under S 672.33 the Crown is required to establish a prima
facie case against the accused every two years until the accused is either found fit to stand trial or is
acquitted. Under S 672.851, the court is able to stay proceedings in cases where the accused is not
likely to ever be fit to stand trial, and does not pose a significant threat to public safety.
R. v. Whittle (1994) (operating mind test)

Held that the test for fitness to stand trial “is quite different” from the definition of mental disorder in
Section 16. Key: The idea of fitness focuses on the narrow question of whether the accused is able to
understand the process + communicate with counsel. It is not required that the accused be “capable of
exercising analytical reasoning” in accepting counsel’s advice or making a decision that serves their interests.
Raising the Defence of Mental Disorder

Traditionally, in Canada the courts have allowed the Crown to raise the mental disorder offence (this is not
generally allowed in other Common Law countries like Britain and the US). Policy Rationale: Society (as
represented by the Crown) has an interest in ensuring that the mentally ill are not convicted of crimes, and so
prosecution should be able to raise the issue even if the accused chooses not to.
Counter-Arguments
(1) Crown could strengthen a weak case by presenting evidence of mental disorder (may be prejudicial to
the accused if the defence is rejected);
(2) Accused could be subject to indefinite detention if the defence succeeds (and they are found not guilty
on grounds of mental disorder); and
(3) Deprives the accused of the decision to argue that they are innocent of the crime.
R. v. Swain [1991] (attacked-family-bizzarely-Crown-raised-MD-defence)

CROWN MAY RAISE THE ISSUE OF MENTAL DISORDER INDEPENDENTLY OF THE ACCUSED ONLY AFTER THE
TRIER OF FACT HAS PROVEN THE OFFENCE AND BEFORE A CONVICTION IS ENTERED. Swain violently
attacking wife + children in bizarre manner, yelling about spirits and believed his wife + kids were being
attacked by devil. Charged with aggravated assault. Can the Crown raise evidence of insanity over and
above the accused’s wishes and if so does this interfere with the accused’s control over his or her own

62
defence? Court began by noting that the CL practice (in Canada) of allowing the Crown to raise the mental
disorder defence violated S 7 of the Charter because it deprived the accused of the ability to control his or
her defence. BUT: SEE RATIO.
Result (R v Swain):
(1) Crown can only raise the mental disorder defence after the accused has been found guilty.
(2) Exception arises where the accused has raised an issue over his or her capacity.
For example: If accused raises issue of automatism, then it is open to the Crown to raise the issue of
mental disorder (according to the definition in Section 16).
In addition:
(1) The accused may raise the defence of NCRMD at any time, including after the verdict of guilty and
before conviction is entered.
(2) Note that Justice Wilson – despite concurring with the result of the case – stated that allowing the
Crown to raise mental disorder during the course of the trial still infringes on the accused’s right to
control his defence. Also argued that this infringes the equality rights of the mentally disabled.
R. v. Chaulk [1990 SCC] (burden of proof issues)

THE “WRONG’ THAT AN ACCUSED MUST BE ABLE TO APPRECIATE IS A MORAL WRONG. C+M broke into an
individual's house, plundered it, then stabbed + bludgeoned him to death. Evidence at trial that the pair were
psychotic & thought that they were going to rule the world - killing the victim did not matter as he was a
"loser". They knew that it was contrary to the law to kill people, but they thought that they were above the
law. Whether Sections 16(2) + 16(3) violate the presumption of innocence under Section 11(d) of the
Charter. According to Section 16, accused is presumed to not suffer from a mental disorder, and if the issue is
raise the accused must prove disorder on a balance of probabilities. Violates the presumption of innocence
b/c it allows a factor which is essential for guilt to be presumed rather than proven. However: This
displacement of the burden is demonstrably justified under Section 1. The principle at stake in Section 16 is
not innocence, but the proposition that the attribution of criminal responsibility and punishment is morally
and legally justifiable only for those who have the capacity for reason.
Note: The defence of NCRMD will only be put to the jury is it has an “air of reality” to it (regardless of
whether it is raised by the defence or the Crown). (R v Chaulk)
Consequence of the Defence
Step 1 – Disposition Hearing: If the accused is found NCRMD, then a disposition hearing – composed of a
judge and two mental health professionals – is required to be held “as soon as is practicable but not
later than 40 days after the verdict was rendered” (Section 672.47(1)).
Step 2 – Assessment and discharge: If the review board concludes that “the accused is not a significant
threat to the safety of the public”, then they will be discharged.
 What constitutes a significant risk? Winko v. British Columbia [1999]: McLachlin: Part XX.1 of the
Criminal Code protects the liberty, security of the person, + equality interests of an accused who is
not criminally responsible by requiring an absolute discharge unless there is a significant risk to the
safety of the public. Dispositions are set out in s. 672.54 and require 12 monthly review for anything
other than an absolute discharge. Not criminally responsible is not a finding that an accused is
inherently dangerous or poses a significant threat to society. Two objectives – providing treatment
to an accused and assessing their risk (if any) to society – are embodied within the provision.
Winko v BC (Forensic Psychiatric Institute) SCC 1999

63
W suffered from a mental illness which included hearing voices. In 1983, he was arrested for attacking
pedestrians with a knife. Found NCRMD + was institutionalized. In 1995, the institute's review board directed
W to be given a conditional discharge. Winko appealed the ruling, asking instead for absolute discharge. Was
S. 672.54 of the Criminal Code which granted the review board the power to give discharges a violation of
section 7 + 15 of the Charter? Held: No; not vague/overbreadth/improper onus.
Step 3 – Continued Detention / Conditions: If the review board decides against an absolute discharge, then
according to S 672.54 they are required to make a disposition that – taking into “consideration the need to
protect the public from dangerous persons, the mental condition of the accused, the reintegration of the
accused into society and the other needs of the accused” – is “the least onerous/ restrictive to the accused.”
In practice: This can mean placing the accused in continued detention at a mental health institution /
hospital, or releasing them subject to a series of conditions and restrictions.
• Continued detention (or imposed conditions) must be reviewed on a yearly basis by the review
board – Section 672.81(1)
• Detention and treatment of the accused is the responsibility of provincial authorities.
• Although the review board cannot order treatment for the accused, it does have the power to order
provincial authorities to provide an assessment and treatment plan.
Background of the Defence

Current approach in Canada has its origins in the rules developed in M’Naghten: The accused will have a
defence of insanity where it can be proved that “at the time of the committing of the act, the party accused
was labouring under such a defect of reason, from disease of the mind, as not to know the nature + quality
of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong.”
 Rules focus on the cognitive/ reasoning abilities of the accused, and essentially exclude any
consideration of emotional or volitional factors.
16 (1) No person is criminally responsible for an act committed or an omission made while suffering from a
mental disorder that rendered the person incapable of appreciating the nature and quality of the act or
omission or of knowing that it was wrong.
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal
responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
Three key differences between the original M’Naghten rules and the version contained in Section 16:
(1) Section 16 substitutes the word “appreciate” for “know” in the framing of the rule:
(2) Section 16 refers to the capacity of the accused to appreciate the nature and quality of their actions,
while the original M’Naghten rules refer to knowledge
(3) Section 16 was amended by Parliament in 1991, with reference to insanity being replaced by the term
“mental disorder.”
In Canada, the defence is referred to as the not criminally responsible on account of mental disorder
(NCRMD) defence.
Structure of the Defence
Three basic steps before the defence can be established: (confirmed in R. v. Bouchard-LeBrun (2011)):
(1) Accused must establish that, at the time of the alleged offence, they were subject to a mental disorder as
defined in Section 2 of the Code.

64
The question of whether a particular mental condition qualifies as a mental disorder under the Code is a
question of law for the court to decide, and may be determined by policy considerations as well as medical
definitions or understandings of mental illness.
 In Canada, the courts have stressed that the internal / external distinction is not a determinative
factor, and that danger of recurrence (typically associated with disturbances that have an “internal”
cause) is only one of many factors that should be taken into account when deciding if condition in
question is a mental disorder under Section 16 . Confirmed in R. v. Parks (1992)
 R. v. Stone [1999]: Factors that can be considered in determining whether a disturbance of the mind
is a mental disorder include:
o Evidence of continuing danger
o Recurring likelihood of violence
o Internal cause
o Psychiatric history of accused
SCC provided a definition of disease of the mind in R. v. Cooper (1979): Embraces any illness, disorder or
abnormal condition which impairs the human mind and its functioning, excluding, however, self-induced
states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. The
phrase “disease of the mind” should be given a broad and liberal legal construction.
 Although “disease of the mind” includes a medical component, deciding whether a given condition
fits within this phrase is ultimately a question of law determined by the trier of fact (Cooper)
Examples of conditions that have been recognised as mental disorders for the purposes of Section 16:
• Psychopathic personalities – R. v. Simpson (1977)
• Personality disorders – R. v. Rabey (1977)
• Brain damage, including fetal alcohol spectrum disorder – R. v. C.P.F. (2006)
• Severe mental disabilities – R. v. Revelle (1979)
• Delirium tremens produced by chronic alcoholism (where the condition is permanent and not simply
the product of transitory intoxication) – R. v. Malcolm (1989)
What about the question of self-induced states of mental disorder?

General Rule: Excluded according to the decision in R. v. Cooper (1979)
However: Although the rule was confirmed in Bouchard-LeBrun (2012) – which held that the defence of
NCRMD was not available where the accused is suffering from transitory psychosis as a result of involuntarily
ingesting drugs – the court appears to have left open the possibility of the defence where the ingestion of
drugs exacerbates a pre-existing condition and results in a form of psychosis that continues for a significant
period (typically months rather than days).
Bouchard-LeBrun (2012) (unanticipated-toxic-psychosis-from-drug-use)

DEFENCE OF NCRMD NOT AVAILALE FOR FORMS OF TRANSITORY PSYCHOSIS AS A RESULT OF DRUG USE. A
suffered “toxic psychosis” as a result of self-induced intoxication + brutally assaulted 2 people. The drug
consumed by A caused “a complete dissociation betw/ subjective perceptions + objective reality.” A stated
that this effect was unanticipated. A had never previously experienced toxic psychosis, + was not addicted to
any substance. A argued that his toxic psychosis (and all toxic psychosis) must emerge from an underlying
disease of the mind and not simply from intoxication. Held: A malfunctioning of the mind that results
exclusively from self-induced intoxication cannot be considered a disease of the mind in the legal sense, since
it is not a product of the individual’s inherent psychological makeup. Toxic psychosis seems to be nothing
more than an extreme symptom of the accused person’s state of self-induced intoxication. Such a state
cannot justify exempting an accused from criminal responsibility.
In order to successfully raise the defence of NCRMD, A must

65
• Prove on a balance of probabilities that he or she was suffering from a mental disorder in the legal
sense at the time of the events; and
• Prove on a balance of probabilities that due to the mental condition, A was incapable of knowing
that the act or omission was wrong (or of understanding the nature and quality of his or her acts).
Certain types of self-induced psychosis may provide the basis for a defence of NCRMD, including:
• Psychosis caused by ingestion of a drug(s) that lasts for a significant period;
• Ingestion of a drug(s) exacerbates a pre-existing psychotic condition; and
• Psychosis caused by withdrawal from a drug (e.g. alcohol).
**If the accused is able to pass this first step, then must establish EITHER:
(2) That they lacked the capacity to appreciate the nature and quality of the act or omission that
forms the basis of the charge against them; OR
The ability to appreciate the nature + quality of an act involves more than mere knowledge or cognition that
the act is being committed. It also includes capacity to measure + foresee the consequences of the conduct
 The defence does not apply to an accused who has the necessary understanding of the nature,
character + consequences of the act, but merely lacks appropriate feelings/emotions for the victim
or lacks feelings of remorse or guilt for what he has done, even though such lack of feeling stems
from “disease of the mind.” (R. v. Simpson (1977))
R. v. Abbey [1982] (incapable-of-appreciating-legal-consequences-irrelevant)

THE CONSEQUENCES THAT THE ACCUSED MUST BE CAPABLE OF APPRECIATING ARE THE PHYSICAL
CONSEQUENCES OF THE ACT. PERCEPTION ABOUT LEGAL CONSEQUENCES IS IRRELEVANT. Accused was
charged with importing cocaine and possession of cocaine for the purpose of trafficking. Psychiatrists called
by both parties agreed that A knew what he was doing + that it was wrong. Differed as to whether he was
capable of appreciating the nature + quality of the act. A believed that if he was caught he would not be
punished. HELD: A delusion about legal consequences does not render A incapable of knowing the nature and
quality of his or her act.
(3) That they lacked the capacity to know the act or omission was wrong.
Does Section 16 refer to a legal wrong or a moral wrong?
R. v. Chaulk (1990): The word wrong in Section 16(1) means wrong according to the ordinary moral
standards of reasonable members of society. It is not enough to show that A understood that the act was
contrary to law. The question is “whether an accused was rendered incapable, by the fact of his mental
disorder, of knowing that the act committed was one that he ought not have done.”
When is the insanity defence NOT available?

 Insanity defence not available to a psychopath or other person following a deviant moral code if that
person is “capable of knowing that his or her acts are wrong in the eyes of society, and despite such
knowledge, chooses to commit them.” R. v. Oommen (1994)
 Insanity defence not available if – even though the accused was labouring under a delusion – they
were still capable of knowing that the act in the given circumstances “would have been morally
condemned by reasonable members of society.” R. v. Ratti (1991)
 Insanity defence not available where accused knows that killing the victim is wrong, but does so in
the deluded belief that killing them would save the world. R. v. Baker [2010]

66
NCRMD defence will not be available under the second limb of Section 16(1) if the accused – who
understands society’s general views about the difference between right and wrong – chooses to do the
wrong thing due to a delusion.
R. v. Oommen [1994] (paranoid-delusion-of-conspiracy-to-kill-him)

THE INQUIRY FOCUSES NOT ON A GENERAL CAPACITY TO KNOW RIGHT FROM WRONG BUT RATHER ON
THE ABILITY TO KNOW THAT A PARTICULAR ACT WAS WRONG UNDER THE CIRCUMSTANCES. O suffered
from paranoid delusion believing the woman he repeatedly shot was part of a conspiracy that was coming
into his house to kill him. Held: On the evidence, the accused possessed general capacity to distinguish right
from wrong, but delusions deprived him of the capacity to know that killing the victim in particular was
wrong – in fact believed action was necessary + justified. Held: Acwuitted. The Section 16 enquiry focuses on
the ability to know that a particular act was wrong in the circumstances and at the time that the act is
committed. The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether
the act is right or wrong and hence to make a rational choice about whether to do it or not.
R v Landry (1991 SCC) (believed-he-was-God-and-his-friend-was-Satan)

L charged with 1st-degree murder as a result of the killing of his friend. Evidence established that the accused
had paranoid schizophrenia & over years believed his former friend was Satan and that he, the accused, was
God. Believed it was necessary for him to kill the deceased so as to save the world from destruction. Held:
NCRMD – rendered incapable of knowing the act was morally wrong in the circumstances.
AUTOMATISM
At law, the term automatism refers to behaviour that is unconscious or involuntary.
R. v. Rabey (1977 SCC) defined automatism as: Unconscious, involuntary behaviour, the state of a person
who, though capable of action, is not conscious of what he is doing. It means an unconscious involuntary
act, where the mind does not go with what is being done.
 R. v. Stone [1999], the court held that the accused does not actually need to be unconscious to have
the defence of automatism. Key is that the actions were not voluntary.
Consequences of the automatism defence are complete acquittal R. v. Bleta (1964). If the accused presents
evidence of automatism, it is then open to the Crown to counter with evidence that the cause of the
automatism was a mental disorder (or some other factor).
If cause of automatism is disease of the mind:

THEN: Accused is not criminally responsible by reason of mental disorder (NCRMD) and subject to
a disposition hearing.
If cause of automatism is not a mental disorder:
THEN: Accused must receive a simple acquittal as per the decision in R. v. Bleta (1964)
 R. v. Parks (1992): successful automatism defence amounts to a repudiation of actus reus
Prior to 1992: If the accused raised a defence of non-insane automatism, then the accused would be entitled
to an acquittal if the evidence raised a reasonable doubt as to whether they acted in a voluntary or
conscious manner (R. v. Parks (1992)) Rationale for this approach was based on the idea that such evidence
would raise a reasonable doubt as to whether the accused acted with the requisite fault element (including
capacity to form any objective mens rea) or alternatively whether the actus reus was voluntary / conscious.
R v Parks (1992 SCC) (sleepwalking-killed-in-laws) *CHANGED AS OF STONE

67
AUTOMATISM RESULTS IN AN ABSOLUTE ACQUITTAL. P attacked his parents-in-law when he was

sleepwalking. He drove 23 kms to their house when he was sleepwalking + stabbed them in their sleep, killing
his mother-in law + seriously injuring his father-in-law. No reasonable motive or mental conditions. Acquitted.
Once the defendant raises automatism, the burden is on the Crown to prove voluntariness.
Position changed as a result of the decision in R. v. Stone (1999 SCC): Before the court moves to consider a
claim of non-mental disorder automatism, the accused must establish on a balance of probabilities that their
conduct was involuntary.
Roach argues that there were two main reasons behind the shift:
(1) Court was concerned that automatism defence could be faked under the traditional approach – that is,
jury could consider the question of automatism provided that the accused presented some evidence that
raised a reasonable doubt as to voluntariness.
(2) Court wanted to bring burden of proof for automatism in line with extreme intoxication (Daviault) and
NCRMD (Section 16(1)) – that is, onus is on the accused to establish the defence on a balance of probabilities
R. v. Stone also held that the new persuasive burden on the accused – to prove automatism on a balance of
probabilities – also raised the threshold for judges with respect to whether to instruct the jury about the
defence. In order to establish the air of reality threshold test, the accused must do more than simply assert
involuntariness. Must also have collaborating psychiatric evidence.
R. v. Stone also lists a number of other factors that can be considered by the trial judge when deciding
whether the air of reality threshold is met:
(1) Severity of any triggering stimulus
(2) Corroborating evidence of bystanders
(3) Evidence that the accused has entered into a state of automatism in the past
(4) Whether the victim was also an alleged trigger for the automatism
(5) Whether the crime can be explained without reference to automatism.
R. v. Stone (1999) (killed-wife-after-hours-of-insults-producing-automatistic-state)

Stone killed his wife after she had insulted him over a period of hours. Argued both automatism + mental
disorder automatism. Claims that his wife’s words caused him to enter an automatistic state in which his
actions were involuntary. Automatism is best defined as a state of impaired consciousness in which an
individual is capable of action but has no voluntary control over that action. Automatism may stem from a
disease of the mind, or it may not. The legal burden of proving automatism rests on the party who raises the
issue, to a standard of balance of probabilities. Question of whether to leave mental disorder or non-mental
disorder automatism with the jury depends on the application of the definition of a disease of the mind.
Held: A normal person would not have entered into an automatistic state from this.
Key points from Stone:

 The defence bears the legal burden of proving involuntariness on a balance of probabilities to the
trier of fact. This is justified under Section 1 as automatism is easily feigned & the relevant
knowledge rests with the accused. Question for the trial judge is whether the defence has raised
evidence on which a properly instructed jury could find that the appellant acted involuntarily on a
balance of probabilities. The trial judge should consider factors such as motive & corroborating
evidence in deciding whether this standard has been met.
 The trial judge must decide which form of automatism to leave with the trier of fact. The trial judge
must decide which mental conditions are included within the term and whether there is any
evidence that the accused suffers from an abnormal mental condition.
 In deciding whether the accused suffered from a disease of the mind, the judge may have regard to:

68
o (i) Whether the normal person might have reacted to the alleged trigger by entering an
automatistic state. In the case of psychological blow automatism (such as this one), an
extremely shocking trigger must be needed to prompt automatism in an ordinary person.
o (ii) Policy considerations also dictate attention to the question of whether A presents a
continuing danger. If the danger is likely to be a continuing one, this supports a preference
for Section 16.  Ask whether the trigger would recur, not the automatism
Interesting implication of the majority decision:

R. v. Luedecke (2008): After Stone, the trial judge must begin from the premise that the automatism is
caused by a disease of the mind & look to the evidence to determine whether it convinces him or her that the
condition is not a ‘disease of the mind.’ Stone overrules Parks in this regard. Ie. tends to keep sleepwalking
cases in mental disorder automatism. Consider a situation where the defence produces evidence that shows
that the accused was – on a balance of probabilities – suffering from dissociation. Trial judge is obliged to
presume that the dissociation was the result of a mental disorder (unless there are facts that displace the
presumption). If the court concludes that the dissociation was not the result of a mental disorder, court is not
able to “return to the start” and consider “non-insane” automatism.
Main categories of automatism:

(1) Automatism caused by “normal” conditions (such as sleepwalking and hypnosis);
(2) Automatism caused by external trauma (such as blows to the head);
(3) Automatism involuntarily induced by alcohol or other drugs;
(4) Automatism voluntarily self-induced by alcohol or other drugs; and
(5) Automatism caused by a mental disorder.
Note: Only categories (1) – (3) can constitute the non-insane automatism defence.
(1) Automatism caused by “normal” conditions (such as sleepwalking and hypnosis)

69
R. v. Parks (1992): Sleepwalking is a normal condition and renders a person “unable to think or perform
voluntary acts.” Court rejected the argument that sleepwalking was a form of mental disorder, and held that
it is a normal condition that can provide the basis for the automatism defence (and a complete acquittal). As
a result of Stone, the decision in R. v. Luedecke held that sleepwalking in this case was a mental disorder.
(2) Automatism caused by external trauma (such as blows to the head)

R. v. Rabey (1977 SCC): Held that an automatic state brought on by an emotional or physical blow could
provide the basis for a defence of non-insane automatism. BUT event in question must be “extraordinary”
one that might reasonably be presumed to effect the average normal person ie. being in a serious accident or
seeing a loved one killed. Being exposed to “ordinary stresses + disappointments of life” will not be enough.
• Likelihood of recurrence of dissociation must be remote.
• Noted that in the case of a physical blow, the question is whether the accused went into a
dissociative state (not whether a reasonable person exposed to the same blow would have done so).
(3) Automatism involuntarily induced by alcohol or other drugs

If the accused falls into a state of automatism as a result of involuntary intoxication – or from being drugged
– then they are entitled to the defence of automatism. NOT available where there is evidence that the
accused had foresight of impairment or had taken the alcohol / drug voluntarily.
(4) Automatism voluntarily self-induced by alcohol or other drugs.

Rule: If the accused falls into a state of automatism as a result of voluntary intoxication – or from taking
drugs – then they will not be entitled to the defence of automatism R v Revelle (1979)
Bouchard-Lebrun: SCC held that there was no mental disorder where the accused took drugs resulting in a
toxic psychosis (& committed assault in part because of religious delusions).
(5) Automatism caused by a mental disorder

Where the automatism is caused by a mental disorder, the accused will not be entitled to the defence of
automatism, but instead Section 16 will apply.
SELF-DEFENCE
Self-defence is a right. Key points to note about the operation self-defence:
1. Self-defence is not a repudiation of the actus reus or mens rea of the crime, but rather a justification
that provides a complete defence (and leads to acquittal).
2. Accused does not have to establish the defence on a balance of probabilities (unlike for mental
disorder, automatism, intoxication), but rather the Crown must disprove the defence as part of its
burden to prove guilt beyond a reasonable doubt. If jury has a reasonable doubt the accused acted
in self-defence, then it must acquit.
3. Trial judge does not have to instruct the jury in all cases where self-defence is raised. (R. v. Cinous
(2002 SCC)) held that the standard air of reality test applies. Trial judge must be satisfied that a
properly instructed jury acting reasonably could acquit on the basis of the evidence.
a. R. v. Cinous: there was no evidence that the accused acted in self-defence (when he shot
the victim in the back of the head), and so the trial judge should not have instructed the jury
to consider the defence.
Section 34(1)
A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a
threat of force is being made against them or another person;

70
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves
or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
Three key requirements under Section 34(1):
For a claim of self-defence to be successful, the accused must raise a reasonable doubt that they:
1. Subjectively believed on reasonable grounds that force (or the threat of force) was being used
under S 34(1)(a);  INCORPORATES A SUBJECTIVE + OBJECTIVE COMPONENT
o Begin by asking whether the accused subjectively believed they were being assaulted or
threatened with an assault. Then: Ask whether there was an objective (reasonable)
basis for the subjective belief (R v Reilly, 1984; R v Cinous, 2002)
o Can make a subjective mistake as to existence of threat/ force as long as it is objectively
reasonable (R v Berrigan, 1998)
R v Berrigan (cellphone-in-pocket-instead-of-perceived-gun)
CAN MAKE A SUBJECTIVE MISTAKE AS TO EXISTENCE OF THREAT AS LONG AS IT IS OBJECTIVELY
REASONABLE. Accused stabbed the victim. Claimed he did so b/c he thought the victim was reaching for a
gun (in fact, he was taking a cellphone out of his pocket). HELD: Mistake was based on reasonable grounds,
having heard that the victim had told Berrigan on 3 previous occasions that he carried a gun.
R v Cinous (2002 SCC)

MUST BE AIR OF REALITY TO SELF-DEFENCE (BOTH SUBJECTIVE + OBJECTIVE ELEMENTS). C supported
himself with criminal acts esp. computer theft. Suspicious that the victim had stolen his revolver, and had
heard rumours that the deceased + 3rd party intended to kill him. Several days after the revolver was stolen,
the victim + 3rd party proposed that the accused join them in a theft. The accused said they behaved
suspiciously. When the victim put on latex surgical gloves, the accused, thinking he was soon to be killed, shot
the deceased in the back of the head at a service station where they had stopped to purchase windshield
wiper fluid. Held: No air of reality. Needs both subjective component and objective for all elements. It is not
enough for an accused to establish a subjective conviction that he had no choice but to shoot – the accused
must be able to point to an objectively reasonable ground for that belief. For 34(2) to succeed, a jury would
have to accept that the accused believed on reasonable grounds that his own safety/ survival depended on
killing the victim at that moment.
Other Points:
(i) Includes threat of force  Honest but reasonable mistake as to the existence of an assault
is permitted ((R. v. Petel (1994))
(ii) The accused is not required to wait until faced with an imminent attack before acting in
self defence (R v Lavallee, 1990) May be possible for a battered spouse to accurately
predict the onset of violence before the first blow is struck, even if an outsider to the
relationship cannot
(iii) History of the relationship between the parties is relevant to the question of whether the
accused had reasonable grounds to believe that he or she faced force or a threat of force –
R. v. Lavalle (1990)
(iv) Imminence of the force is also relevant to the question of whether the accused had
reasonable grounds to believe they faced force or a threat of force – R. v. Cinous (2002)
(v) Section 34(1)(a) also extends to the protection of “another person” from force or threats
of force.
2. That they had the subjective purpose of defending themselves (or others) under S 34(1)(b);
o Subjective intent behind the accused’s use of must go to self-defence, and not things such as
a desire for vengeance

71
3. That their actions taken in self-defence were reasonable in all the circumstances under S 34(1)(c).
o Key question is whether the amount of force used in self-defence was reasonable under all
the circumstances
Battered Women’s Syndrome changed the context of self-defence: The accused is not required to wait until
faced with an imminent attack before acting in self defence (R v Lavallee, 1990)
R. v. Lavallee (1990) (shot-abusive-husband-from-behind)

ACCUSED DOES NOT HAVE TO BE FACED WITH AN IMMINENT ATTACK BEFORE ACTING IN SELF DEFENCE.
Accused shot her abusive husband in the back of the head after he threatened to hurt her once their guests
had left their house. Can expert evidence be used in a claim of self-defence, and if so, to what extent? Held:
Accused was acting in self–defence, even though she was not being assaulted at the time of the act. A
psychiatrist gave expert evidence at trial describing her state of mind, and that she felt as though she was
"trapped" and that she would have been killed if she did not kill him. Wilson J.: Rejected the view that it was
unreasonable to for the accused to apprehend death or grievous bodily harm – and act accordingly in self-
defence – unless the assault was in progress. It justifies the act because the defender reasonably believed
that he or she had no alternative but to take the attacker's life. If there is a significant time interval between
the original unlawful assault and the accused's response, one tends to suspect that the accused was
motivated by revenge rather than self-defence. Inference makes sense with two “men” of equal size +
strength. Role of imminence is diminished where the accused is a woman who has been subjected to a
pattern of physical abuse.
R v Malott [1998 SCC]: The fact that the appellant was a battered woman does not entitle her to an acquittal.
Battered women may well kill their partners other than in self-defence.
Past experience can be relevant when assessing whether someone is a serious threat to you or not → Can
use subjective requirements to give meaning to imminence requirement. The issue is not what an outsider
would have reasonably perceived but what the accused reasonably (subjectively) perceived, given her
situation and her experience. (R v Petel, 1994 SCC)
Section 34(2)
Section 34(2) In determining whether the act committed is reasonable in the circumstances, the court shall
consider the relevant circumstances of the person, the other parties and the act, etc
 Sets out nine specified factors that the court should refer to when determining whether the third
requirement – that the force used be reasonable – is made out.
 The jury is not confined to the list contained in Section 34(2).
 Provides guidance on whether the third element of S. 34(1) is made out
(a) The nature of the force or threat

 The greater the degree of violence being used against the accused, the more force they can
reasonably use in response.
 Use of force can be preemptive (in response to threatening words or gestures).
 Must be considered in the context of history of abuse and reasonable perceptions of accused (R
v Young, 2008)
(b) The extent to which the use of force was imminent and whether there were other means available
to respond to the potential use of force
 The less imminent the likelihood of violence, the more the accused will be expected to find a
means of avoiding the threat / resorting to self-defence

72
 No formal requirement of imminence – and so an absence of imminence will not be fatal to the
defence – R. v. Petel (1994)
 R. v. Lavallee (1990) – role of imminence is diminished where the accused is a woman who has
been subjected to a pattern of physical abuse
(c) The person’s role in the incident
 The defence may not be available in cases where the accused has initiated the violent encounter
that led to them using self- defence
 R v McIntosh (1995 SCC): Held that the accused – who had confronted the victim with a knife
following a disagreement over property he’d lent him – could not repy on self-defence as he has
provoked the attack
(d) Whether any party to the incident used or threatened to use a weapon
 The use of a weapon will be a key factor in determining whether the force used was reasonable
in all the circumstances. Lavallee (1990): Court held that it might be reasonable for a woman to
use a weapon against a more powerful male partner (in the context of history of abuse)
 Very difficult to rely on self-defence where accused uses deadly force in response to a non-lethal
weapon – R. v. Cain (2011)
(e) The size, age, gender and physical capabilities of the parties to the incident
 Where the accused is at a significant physical disadvantage, then the use of a weapon / extreme
force is more likely to be regarded as reasonable – R. v. Lavallee (1990)
 Role of gender in R. v. Lavallee (1990): “I do not think it is an unwarranted generalization to say
that due to their size, strength, socialization, and lack of training, women are typically no match
for men in hand-to-hand combat.”
(f) The nature, duration and history of any relationship between the parties to the incident, including
any prior use or threat of force and the nature of that force or threat
 The existence of a pre-existing relationship between the parties – particularly if it is an abusive
one – may be taken into account when considering whether the pre-emptive use of force in self-
defence was reasonable – R. v. Lavallee (1990)
(f.1) Any history of interaction or communication between the parties to the incident
 The court can look to previous interactions / past communication when determining whether
the accused’s conduct was reasonable.
 Ie. if you borrow money from a loan shark with a reputation for violence, it may be reasonable to
be in fear for your safety when they come to collect the debt (R. v. Docherty, 2012)
(g) The nature and proportionality of the person’s response to the use or threat of force
 The use of force must be proportional to the circumstances / situation.
 Courts recognize decisions made in relation to self-defence are often made quickly/ in heat of
moment – when it’s difficult to decide what might be an appropriate/proportionate response
 R. v. Baxter (1975): “[A] person defending himself against attack, reasonably appreciated,
cannot be expected to weigh to a nicety, the exact measure of necessary defensive action.”
(h) Whether the act committed was in response to use or threat of force that they knew was lawful
 Good example of this is where a trespasser knows that a homeowner has a legal right to use
force to remove them (if they have refused to leave). In this case, if the trespasser resorts to the
use of force in self-defence, the court may not agree that the use of force was justified.

73
 Note also the operation of Section 34(3): Cannot rely on self-defence where the force used /
threatened is from an individual who is legally entitled to use such force / make such threats
(such as a police officer).
Essay Tips:
1. Give yourself time to show off for a paragraph or 2 à CRITICALLY ENGAGE with the material not
just regurgitate ie. discussing whether or not you think it’s the right outcome/law, policy
arguments, etc.
 Might be woven together through multiple paragraphs
2. Even in a “discussion” essay Q, would be helpful to pick a side/argument anyway to give structure
to your essay
Is the definition of mental disorder sufficiently developed in Canadian criminal law? Why or why not?
(Perrin 2010)
Step 1. Define mental disorder in Code (not really a definition)
Step 2. Pick a side (ie. no)
Step 3. Outline your argument/ thesis
Step 4. Back it up with case law/ examples
- Mental and legal definition are different (legal more narrow)
- This is a problem bc if a person is found NCRMD, they are now in the hands of medical profession
rather than legal
- Need more cohesive definition
- How it’s been used/interpreted in common law
- Make an argument (ie. Code could actually include psychiatric conditions – or why shouldn’t we do
that?)
Step 5. Talk about the other side too and pros/cons à Is this the question we should be asking? It’s implying
that a good definition would fix problems, but would it?
Step 6. Conclusion
“The law should not distinguish between a completed offence and an attempt. Attempts occur for the
‘lucky’ criminal.” Do you agree? Explain. (Mosoff 2011)
“Direct symmetry between elements of the actus reus and mens rea is foundational to the criminal law. To
upset this rule would be to change the very nature of criminal liability.” Discuss.
(Mosoff 2014)

Crim (Goold) - 2016 - Andrea - Bajcetic

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Crim (Goold) - 2016 - Andrea - Bajcetic

Uploaded by

Copyright:

Available Formats

1

Criminal Law CAN Table of Contents

SPRING 2016 – GOOLD

SPRING 2016 – GOOLD

SPRING 2016 – GOOLD

Introduction to Criminal Law

Why do we need a clear definition of what constitutes a crime?

FUNCTIONS OF CRIMINAL LAW

1. Instrumental (consequentialist) Functions: Aimed at bringing about some (positive consequence).

2. Moral Functions: Aimed at promoting or defending a particular moral position

SOURCES AND LIMITS OF CRIMINAL LAW

SPRING 2016 – GOOLD

3 essential characteristics of a crime:

SPRING 2016 – GOOLD

READING THE CODE

1. Start with relevant CC section

General Rules of Statutory Interpretation

Principles Worth Noting

CRIMINAL COURT SYSTEM IN BC

SPRING 2016 – GOOLD

 Appointed by the federal government

Criminal Justice Process: Investigation  charge assessment  prosecution  sentencing  appeals

ROLE OF THE CROWN (CC S.4)

Boucher v the Queen

WJ Stuntz “Pathological Politics of the Criminal Law” (pp. 272-273)

Prosecutorial Discretion (PD)

 Failure to observe court rulings or orders

SPRING 2016 – GOOLD

(1) Doctrine of separation of powers – prosecution is an executive function / responsibility; and

R v Kriger (Referenced in Anderson)

Miazga v Kvello Estate

ABORIGINALS AND JUSTICE SYSTEM

Disparity Between Indigenous and Non-Indigenous Incarceration Rates

 Criminal law is heavily socially constructed (product of human decisions)

SPRING 2016 – GOOLD

R v Marshall (1983) (stabbing-during-robbery-wrongfully-convicted)

LANDMARK CASE EXAMPLE OF SYSTEMIC DISCRIMINATION AND WRONGFUL CONVICTION. Marshall

1. Shortcomings of justice system

SPRING 2016 – GOOLD

CONSTITUTION AND CRIMINAL LAW

ELEMENTS OF THE CHARTER AND CRIMINAL LAW

S. 7 - right to life, liberty and security of the person

R v Oakes (1986) (possession-hash-accused-prove-not-trafficking)

R v Downey (1992 SCC)

SPRING 2016 – GOOLD

Canada (AG) v Bedford (2013 SCC) (prostitution-legality)

Accused acquitted If any element of Actus Reus not established

REQUIREMENTS OF ACTUS REUS

CHECKLIST for Actus Reus:

SPRING 2016 – GOOLD

Examples of involuntary conduct: Reflexes, sleepwalking, accident (Lucki, 1955)

R v Lucki (1955) (accused-car-slid-ice-wrong-side-road)

R v Larsonneur (1993) (convicted-as-alien-beyond-control)

Killbride v Lake (1962) (accused-parking-pass-lost-when-parked)

R v Ruzic (2001 SCC) (charged-importing-narcotics-threats)

Positive Acts/ Omissions

Why should we criminalize omissions? (Policy argument)

1. There is no moral difference between an act and an omission.

R v Speck [1977]: (Accused-did-not-remove-little-girl’s-hand-from-pants)

Moore v the Queen [1979]

R v Browne (1997) (drug-dealer-GF-overdose)

R v Thornton (1991) (accused-donates-AIDS-blood-knowingly)